Mrema J G
This is a simple suit arising from an alleged breach of contract between Jackson Mussetti, the plaintiff and M/S Blue Star Service Station, the defendant. The plaintiff agreed to pay for the transport costs for the delivery of nine thousand litres of petroleum products the plaintiff had purchased from M/S BP Tanzania Ltd, at H Mwanza South Depot and the defendant accepted to transport and deliver the said goods at the plaintiff's place of business, to wit, Musoma Service Station. This agreement was reached at the depot of BP Tanzania Ltd, on 14 August 1994 between one Mr Mafuru, the plaintiff's employee, and one Latiff, the defendant's employee and driver. I
A The agreement was further cemented or ratified by Selum Nurjin (DW1) who gave the driver and his turnboy (DW2) a go ahead, after the latter had reported to PW1's office in the presence of one Mr Mafuru, PW1's employee.
B It then turned out at the Musoma Service Station the delivery of the goods created a problem. In the course of the delivery there occurred a mess up to the effect that petrol was mixed up with diesel when off loading the products into the underground tanks at the plaintiff's service station. The mess up was discovered there and then, as the delivery of the same continued, and it transpired that seven thousand five hundred litres out of the nine thousand litres had been off loaded and so mixed up. The one thousand five hundred litres which had not been mixed up C was delivered into underground tank not yet polluted. The plaintiff (PW1) whose attention was drawn by PW3, one Tabu Athumani, who was PW1's pump attendant at the station, refused to honour delivery and possession of the goods. Instead, he (PW1) ordered Latiff, DW1's driver, to siphon out the seven thousand D five hundred litres of the products spoilt and return them to the tanker-chambers and have them returned to the defendant, Norjin (DW1), in Mwanza.
E A few days later, ie on 20 September 1994, the plaintiff, through Dr Lamwai, sent a demand note to the plaintiff demanding compensation for the mixed up products, to wit, petrol and diesel. This assertion is affirmed by the defendant's response, through his advocate, Mr Matata, by a letter dated 26 September 1994, F denying liability and there instead claiming compensation in the amount of Shs 2,800,000/= against the plaintiff attributing that liability to a loss of business for grounding his tanker TZ 45524 because of continuing to hold the `dead stock' from 14 August up to 24 August 1994. The latter (exhibit P3) averred that the seven thousand five hundred litres of petroleum products were delivered to the plaintiff's G station as agreed and the tanker emptied the said goods into the station's underground tanks as duly instructed by the plaintiff's pump attendant. Therefore, the defendant threw the blame to the plaintiff on the account of negligence caused by PW1's employees or servant. In the alternative, however, the defendant offered to pay the cost of the fuel (mixed up), ie seven thousand five hundred litres, at cost price by monthly instalment of Shs 100 000/=. H
The plaintiff did not see the offer as being a reasonable package, hence the present suit. As per the plaintiff's prayer in para 3 of the plaint, the plaintiff is claiming against the defendant a sums of Shs 40,000,000/= as general damages, being compensation to da- I
mage caused to his business's reputation and his personal integrity as A businessman. He is also claiming Shs 2,427,250/= as special damages arising from loss of the fuel products he had purchased from BP Tanzania Ltd. According to para 4 of the plaint, the value of the products, apparently as bought from the BP Depot, was Shs 2,185,000/=. Para 5 of the plaint accuses the defendant in that the B latter's servants or employees negligently mixed up petrol and diesel at the time of delivery thereby mixing the products in wrong tanks in consequence of which the mixtures were rendered unsaleable. In the result, the plaintiff pleads that the defendant is vicariously liable for the negligent or wrongful acts of his servants or employees. C
The particulars of negligence as pleaded by the plaintiff are:
(a) Failure of the defendant's employee to recognize the compartments of their tanker, Registration No TZ 45524 contained petrol and which contained diesel. D
(b) In consequence of (a) above, delivery by the defendant's servants of fuel into the wrong tanks and mixing the products up.
(c) The plaintiff will rely on the doctrine of res ipse loquitur. E
It is the plaintiff's assertion that as the rule of the negligence referred to at para 5 of the plaint, the plaintiff suffered loss. He (plaintiff) splitted special damages into two: (a) Loss of the consignment amounted to Shs 2,185,000/=; and (b) Loss of profit on the consignment, he put it at Shs 242 250/=, giving a total amount of special damages at Shs 2,427,250/=. He has also raised a claim on costs at Shs 600 F 000/= being charges for following up on the loss, thus raising the total on special damages to Shs 3,027,250/=.
As to general damages, the plaintiff has averred at para 7 of the plaint to the effect that in consequence of the loss resulting from the defendant's servants negligence, the plaintiff failed to carry on his business and in the result his service station remained without business; hence his prayer that the defendant be ordered to pay the plaintiff compensation in the sum of Shs 40,000,000/= as general Gdamages -- for the loss of business, pain and suffering incurred.
Finally the plaintiff prays that the defendant also be condemned to pay costs on the decretal sum at the court's rate from the date of judgment up to payment in full, H plus the costs of the suit and incidentals thereto.
As for the defendant, through his advocate Mr Matata, the Written Statement of Defence contains general denials save for the for- I
A mal admissions at some of the paragraphs of the plaint. With regard to the denials, the defendant strongly refuted that his servants were negligent as alleged at para 5 of the plaint (see para 6 of the WSD) and requires the plaintiff to prove the allegation as required by the law. He also refuted the allegation contained at para 8 of the plaint, that avers that the plaintiff's several demands to the defendant B for compensation were ignored and or refused by the defendant, to the effect that the defendant's offer to purchase the mixed up products at costs price was turned down by the plaintiff.
C Besides the denials by the defendant, a counter claim has been raised by the defendant as follows: that, upon the refusal by the plaintiff to take possession of the delivered products the defendant transported the same to Mwanza BP Service Station where the M/Vehicle tanker was grounded from 14th day up to 24th of August, 1994. Thereafter the contents were emptied into an underground tank. Thus, the defendant prays for the following orders: D
(1) Shs 100 000/= per day for the loss of use of the tanker as per para 11 (ie the immediate averment above);
(2) Shs 15 000/= per day for the non-use of the underground tank at the defendant's service station from the 25 August 1994 until the date the E plaintiff takes delivery of the disputed petroleum products;
(3) Shs 90 000/= being the transport charges of the product from Mwanza BP depot to the plaintiff's BP service station at Musoma. F
(4) General damages of Shs 5,000,000/= for breach of contract.
(5) Costs of the suit.
Although the plaintiff, through his advocate, indicated in his reply to the WSD that he would raise a preliminary point of law to the effect that the defendant's G counter-claim do not have any cause of action against the plaintiff, as no delivery remained with the plaintiff after the mixing up, at the hearing, however Mr Magafu apparently made no reference to it. It is apparent, therefore, he tacitly abandoned the contention and I have no reason to refer to that preliminary objection which was never argued. H
Only as a matter of record, it is also to be observed, though not important, that before the hearing of the suit the parties under went mediation process before another judge but they failed to settle. Therefore the suit had to be heard in full.
Issues were drawn and agreed as follows: I
(1) Who was negligent between the parties? A
(2) Who of the parties breached the contract?
(3) Consequent upon the breach of the contract, who between the parties suffered damages?
(4) What relief, if any, are the parties entitled to?
In answering the above questions, no solutions can be made without resorting to B evidence. Once the first issue is answered, it is easier to find out who breached the contract. I therefore, begin with that most difficult question, ie the first question.
The plaintiff's case is that no sooner had the defendant's lorry-tanker reached the C Musoma Service Station than its driver, Latiff, parked it at the station and went away. He left the turnboy there. As we have seen in the evidence, the turnboy was Baltazar Mtwale (DW2). According to Mussetti (PW1), he (Mussetti) was present together with his pump attendant, Tabu (PW3). He and Tabu climbed on to the D tanker and took measurements of the contents in the tanker's chambers using a measuring rod-stick. That they also took samples to examine the quality of the fuel products. He confirmed that both the quality and quantity answered the description of the petroleum products he had ordered. Then they (PW1 and PW3), according E to Mussetti, showed the turnboy the sign boards identifying the various tanks -- for petrol, diesel and kerosene. DW2 was then left to proceed to discharge the liquid products from their respective chambers into the respective underground tanks at the station. PW1, did not, however, tell the court where he went thereafter, F although we shall soon hear that he was called by PW3 (Tabu) from his office when the problem arose. As for Tabu, PW1 said that she continued to serve the public (customers). The rest of the evidence is as told by Tabu (PW3), beginning where a customer was sold diesel and when his motor bicycle failed to have his engine propelled. It was this alleged customer who caused investigation to be G carried out by PW1 and PW3 only to discover that petrol had been mixed up into the diesel underground tank, and diesel emptied into petrol underground tank.
Both prosecution witnesses (PW1 and PW3) claimed that the driver (Latiff), upon H interrogation as why that happened, admitted to the effect that he (the driver) had failed to detail the turnboy about the change when the loading of the goods was done at the BP Depot Mwanza South. That the change was that, this time as opposed to normal practice, the last two chambers of the tanker were loaded with petrol and the first chamber with diesel. The I
A court was further told by PW1 that in order to create evidence he (Mussetti) took the driver to the police. There, according to PW1 and PW3, Latiff repeated the same story, confessing his negligence and undertook to return the spoilt goods, seven thousand five hundred litres to his boss in Mwanza. Thus, according to the two witness's story, the turnboy put in writing (see exh P1), but I think it is better to reproduce the contents thereof, and I quote: B
`7 500 litres of Diesel Reg P zikiwa mchanganyiko zimerudishwa na transporter gari No TZ 45524 Blue Star Station Mwanza. Yaliyochanganywa na wao wenyewe.' C
But before I proceed with the evidence of PW1 and PW3, I propose to deal with the contentions raised by the parties concerning exh P1 first. PW1 admitted that the words `yaliyochanganywa na wao wenyewe' do not appear in the copy attached to the plaint. One may, therefore be astounded to note that the same D photostatic copy attached with the plaint which was in the possession of the plaintiff did not bear the latter quoted words as did the original copy which was also in the hands of the plaintiff. This means, therefore, that PW1 produced two documents which talk two different things. The consequences resulting from such E contradictions are that PW1 is a liar as far as both the documents are concerned. The defendant apparently is not disputing the photostatic copy which do not bear the last words in dispute. PW1 tried to convince me to believe that the F omission of the disputed words might have been occasioned by a carbon paper, in that the words did not pass through the carbon ribbon to reflect on the second copy of the original. At times that does happen but the situation as it is apparent from the facts of the case is not one adopting such a proposition. I do not agree with the plaintiff because had he not produced the copy which he attached to the G plaint I might have agreed with him. For it was not possible for him to extract the copy without the original, and that being the case it was impossible to have the same document reading two different things. The plaintiff knows why and I say no more. But I will not reject both the documents because the defence is not disputing H the copy attached to the plaint. I therefore adopt its contents as being exactly what Latiff wrote but through the handwriting of Maiga, the defendant's driver, and signed by Latiff. That is without the words: `Yaliyochanganywa na wao wenyewe.' Having said that, I return to the evidence of PW1 and PW3. Again, I do not agree with PW1 that the one thousand five hundred litres not returned to DW1 was due to the fact that they failed to I
syphon them out of the underground tanks. DW2 told the court that, that amount of A quantity was emptied into an underground tank which had not been contaminated. This piece of evidence was not disturbed by the plaintiff and, in my view, that evidence appears more probable than untrue because there is no explanation why PW1 did not complain against the one thousand five hundred B litres. I find PW1 to be a liar the second time when he told us that the one thousand five hundred litres were removed by the BP Tanzania officials when they went to service the tanks. The products were not waste products and that explains why PW1 did not return them or complain against the value thereof. On the C premise, therefore, one may reasonable say that the defendant did execute part of the contract by delivering part of the goods he contracted to carry and deliver at PW's service station. The plaintiff having accepted part of the goods, that portion in itself was complete save for payment of the cost of delivery which the defendant is entitled to sue and recover the costs relevant to the amount of goods delivered. D However, the amount of petroleum products carried for delivery to the plaintiff by the defendant is not an issue before me and I have no reason to labour my mind on it. We are concerned with the seven thousand five hundred mixed up litres of petrol and diesel.
The question as who was negligent still remains unanswered. I agree, with E respect, on the contradictions pointed out by Mr Matata touching the evidence of PW1 and PW3. I agree that PW1 was most unlikely present at the station when the lorry tanker arrived there. The story he gave appears to be a narration from PW3. If he was present as he claimed I do not see why he could not have seen F either the turnboy or the driver delivering the disputed goods into wrong underground tanks. He was not present at the station but perhaps he was in the office and that is why PW1 went to call him when the mess occurred. As PW1 does not appear to be a credible witness, I will, therefore, attach no weight in his evidence. I am therefore left with the evidence of PW3 and DW2, indeed at the scene. G
Mtwale (DW2), on behalf of the defendant, gave a diametrically opposite story against that of Tabu (PW3). He told the court that when they reached PW1's service station on 14 August 1994 they found PW3 alone, PW1 was not present. H That PW3 allowed them to off load the goods but this was after confirmation as to the correctness of quantity and quality of the goods was affirmed by Tabu (PW3). The driver of the lorry-tanker was present throughout, according to DW2. This defence witness claimed that it was only him (DW2) who went out to eat when the delivery of the goods was I
A continuing in the presence of the driver Latiff. But that before DW2 went out they started delivering diesel and later petrol. He further claimed that Latiff had told him that the first chamber/compartment of the tanker was loaded with diesel and the two last chambers with petrol. So, it is claimed, they emptied the diesel into the underground tank which Tabu (PW3) was claimed to have told them that was for Bdiesel but later turned out to be for petrol when a customer complained. However, DW2 admitted that he did not go to the police with PW1's employee, Mr Mafuru, who had new arrived from Mwanza. He said, those who went were Latiff, PW3 and Mafuru. It follows, therefore, that what transpired there (at the police) C was not to the knowledge of DW2. But Latiff was not called to tell us who were those people present at the police station when Latiff signed exh P1. As DW2 did not go to the police station he cannot confirm to us that PW1 never went to the police station. Therefore, what actuated Latiff to agree to syphon out the spoilt D seven thousand five hundred litres of petroleum products and return the same to the lorry tanker and ferried it back to Mwanza, this remains a question not answered by the defendant. In that connection the only evidence present is that of PW3 who also went to the police station. Although PW3 was PW1's employee, I can see nothing from the circumstances of the case discrediting her evidence E because Latiff signed a voucher exhibit P1 confirming that the seven thousand five hundred litres were mixed up and were being returned to Mwanza, which was done. The question then, is, why Latiff if not guilty party, acted the way he did? If he was innocent, I can conceive nothing either legal or factual to justify the return of the mixed up petroleum products to the defendant in Mwanza. F
The defendant's main defence is that the delivery was in accordance with Tabu's identification of the underground tanks to Latiff and DW2. That sounds a good defence. But, then what prompted Latiff to return the goods? The court received no G evidence proving undue influence on the part of the driver. If the driver was unduly influenced at the police station thereby causing him to act the way he did I would have found it good defence for the defendant. But there is no such evidence. Again, if the story as told by DW2 had any grain of truth, I wonder why Nurdin H (DW1) did not immediately take steps, either to return the goods to PW1 or to sue him for refusal to accept delivery and possession of the goods as per their agreement. To say it differently, he would have sued PW1 for damages for breach of contract. As if there was no breach of contract by the plaintiff, DW1 (Nurdin) accepted the returned goods and I
kept them at his Blue Star Service Station from 15 August 1994 to 24 August 1994. A I say 15 August 1994 because DW2 affirmed in evidence that after the problem had arisen on 14 August 1994 at Musoma, they slept there and returned to Mwanza on the following day, ie 15 August 1994. Even after 24 August 1994 we have DW2's evidence, and also corroborated by DW1, to the effect that the mixed Bup products were then discharged into an underground tank at DW1's Blue Star Service Station for storage for thirty days. However, I observe that DW2 made an incorrect statement, if not a lie, when he said that the disputed seven thousand five hundred litres remained in the lorry tanker for thirty days and that he slept in the lorry tanker for thirty days. This statement goes counter DW1's statement who C said that the products remained in the tanker from 14 August 1994 to 24 August 1994 inclusive before it was emptied into an underground tank.
Be that as it may, however, the significance of DW1's acceptance of the refused D goods by PW1 was ratification of PW1's complaint that DW1's servants, workers or employees negligently delivered the disputed products in wrong tanks underground at PW1's service station, Musoma. And to further affirm DW1's conduct implying that he had accepted the liability he remained quiet until PW1, E through Dr Lamwai, wrote the demand notice (dated 20 September 1994) for compensation as already stated briefly above. The incident took place on 14 August 1994 and until 26 September 1994 when DW1 responded (exh P3), indeed after being alerted, and that was a period of one month plus. Notwithstanding the F denials and counter claims raised in exh P3, the defendant appeared to admit liability and this is affirmed by the offer he made at the last paragraph of the letter, the salient words which read, quoting them ipsissima verba, as follows:
`Without prejudice to the right (sic) to the aforementioned compensation our client offers to pay G for the said 7 500 litres of diesel at cost price by monthly instalments of Shs 100 000/=.'
In sum, considering the fact that the key witness for defence, one Latiff, was not H called to give evidence, coupled with the conduct of the defendant, Nurdin, after the mess up and the return of the goods to him by PW1, all is nothing but a highly probable inference that what Tabu Athumani (PW3) told this court was nothing but the truth. While the law requires that whoever asserts in a civil litigation must be capable to prove his/her assertion on the reasonable acceptance of evidence, cum on the reasonable balance of probabil- I
A ity, the same burden is not relieved of the defendant to offer evidence in rebuttal, also on the preponderance of evidence. I am, therefore, satisfied that Tabu (PW3) gave plausible and probable evidence worth to believe and I accept it. In those circumstances, as I have endeavored to lucidate herein above, I am in full agreement with the learned advocate for the plaintiff that the defendant's servants were negligent. This answers the first question. B
The next question is who of the parties breached the contract?
Mr Matata, learned advocate for the defendant, in his written submissions, contended that the evidence adduced shows that the defendant's explanation of the occurrence that resulted into the mixing up of the fuel is more probable one C than that of the plaintiff. With respect, this I have ruled was not the case. He further submitted that in returning the fuel to the defendant without payment plaintiff is in breach of the contract for hiring the tanker TZ 45524 on the account that the D defendant performed his part of the contract to transport the fuel from BP (T) depot in Mwanza to the plaintiff's petrol service station at Musoma. Indeed, with respect, I find this to be an incorrect proposition because for a contract to be complete the offer by DW1 to transport PW1's goods must also be accepted by E PW1 if the delivery is as agreed by the parties. But that was not so in this case and that explains why PW1 refused to accept the delivery the way he did. Mr Magafu, learned counsel for the plaintiff submitted that the defendant's counter claim has no merit because all the problems were caused by the negligence of the defendant's employees. He brushed aside the contention by his adversary on the F issue of contributory negligence on the part of his client (the plaintiff). Instead, he suggested that it was the defendant who breached the contract because of the negligence of his employees, as they failed to take all necessary precautions at the time of off-loading the products. Thus, he said, the defendant is liable for G breach of contract for failure to exercise due diligence and thereby caused the plaintiff to suffer damage. I respectfully commend both the advocates for their industrious efforts they laboured on to assist this court to reach a just and logical conclusion in this matter. On my part I have not remained idle. I have examined not only the evidence but also every aspect of contention raised by each one of them. H
For any performance of a contract each party to the contract owes a duty to the other. Just like a seller has a duty to deliver the goods, and the buyer to accept and pay for them, in accordance with the contract of sale (as spelt out by s 29 of the Sale of Goods I
Ordinance), so is a transporter or carrier having the obligation to transport and A deliver the goods to the buyer thereof or the hirer of the motor vehicle, and the latter has a correlative duty to accept the goods and pay for transportation charges. It is crystal clear, therefore, that, unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; the seller or transporter B must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer (also hirer) must be ready and willing to pay the price in exchange for possession of the goods (see s 30 of Sale of Goods Ordinance Cap 214). In the instant case we have no doubt that the plaintiff hired C the defendant's motor vehicle to transport and deliver the goods he had purchased from a third party (BP (T) Ltd) for a price, and there is no doubt as well that the defendant agreed to transport and deliver the very goods the plaintiff had purchased from a third person to the plaintiff. The latter would have executed his D obligation if he paid the price money he had agreed to pay the defendant. But this did not happen because the defendant did not deliver to the plaintiffs's possession the 9 000 litres of petroleum products as agreed between the parties for a price of Shs 120 000/= at delivery. It is no longer in dispute that the defendant E delivered to the plaintiff only one thousand five hundred litres of saleable fuel products which was less that the agreed quantity, that is nine thousand litres, hence seven thousand five hundred litres less. Even under the Sale of Goods Ordinance, Cap 214 s 32(1) stipulates that where the seller delivers to the buyer a F quantity of goods less than contracted to sell, the buyer in accepting the goods so delivered must pay for them at the contract rate. Our instant case is analogous to an occurrence of a situation relevant under s 32(3) which says:
`Where the seller delivers to buyer the goods he contracted to sell mixed with goods of a G different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.'
The plaintiff in this case rejected the seven thousand five hundred litres of H petroleum products which the defendant's employees negligently mixed petrol and diesel, an act that pierced the fundamental root of the contract. It was not the intention of the plaintiff to be delivered to his possession mixtures of petrol and diesel, nor had the defendant offered to so do. The fundamental term of the contract was for the defendant to deliver petrol and diesel in their natural I
A chemical form as delivered from the BP Depot. Therefore, when the defendant delivered to the plaintiff mixtures of petrol and diesel he committed a breach of an express term which entitled the plaintiff to reject the products so delivered. By refusing to accept the goods it did not mean that the plaintiff repudiated the contract. He refused to accept the goods and pay for their transportation and B waited to see the defendant fulfilling his obligation. In the case of RF Mboya v Mewa Mangata (1) although the facts were not the same as the ones in the present case. Platt J was discussing a similar situation involving the rule of acceptance in the law of contract and had the following to say, inter alia: C
`Assuming arguendo that the failure to deliver a workable vehicle constituted a breach going to the root of the contract, for the defendants to rely on that breach as a justification for their own non-performance, they should have refused delivery of the vehicle upon learning of the breach. Having retained the vehicle, the defendants have converted what might have been a breach of D a condition ... and their only remedy is by way of damages caused by the unsatisfactory state of vehicle' . . . also adopting the same view in The National Cash Register Ltd v Stanley [1921] 3 KB 292.'
E Adopting the above proposition, which I respectfully do, in the instant case, what the defendant would have done was to return the goods to the plaintiff if he had believed Latiff's story that the mess up at the plaintiff's petrol service station was due to negligence of the plaintiff's employees. As I have already said above the F defendant did not do that because that story of negligence on the part of the plaintiff's employees never existed. I am more inclined to a factual reflection that the story given by Nurdin (DW1) and his employee Baltazar (DW2) is nothing but an afterthought, it being framed up aimed to exculpate the defendant from the G blame and liability. The defendant's act to continue to store the goods up to 26 September 1994 when they reacted to the plaintiff's advocate's demand notice, which notice was a demand to the defendant to comply with the terms of contract, was, in my view, another manifestation, indeed clear to the eye and mind, that the H defendant continued to hold the contract alive. He then breached it on 26 September 1994 when his advocate Mr Matata wrote to the plaintiff's advocate, Dr Lamwai, disclaiming negligence and liability. The plaintiff was therefore entitled to sue for breach of contract and damage arising therefrom. A similar view was reached in an English case, Frost v Knight (2) at 112, and the rule set out in 8 Hals- I
bury's Laws of England, 3rd ed, p 203, para 344 which reads: A
`The repudiation of the contract by one party does not of itself discharge the contract but the other party has the option of treating the contract as at an end, or of waiting until the time of performance has arrived, before making any claim for breach of contract ... If he elects to wait, he remains liable to perform his part of the contract, and enables the party in default not only to perform his part of the contract notwithstanding his previous repudiation of it, but to take B advantage of any supervening circumstances which would justify him in declining to perform it.' C
The above proposition (cited) was also followed in Tin Containers Ltd v Kencon (3). As G H L Fridman said in his book Sale of Goods at pp 221 and 222 the meaning of acceptance involves duty to accept and take possession, just as the duty to deliver is concerned with giving possession of the goods, say to the buyer. This common law rule was codified in English statute, ie the Sale of Goods Act, D 1893, and adopted in the Tanzanian Statute, see s 37 of the Sale of Goods Ordinance; which provides:
`37. The buyer is deemed to have accepted the goods when he intimates to the seller that he E has accepted them or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of reasonable time, he retains the goods without intimating to the seller that he has rejected them.'
Let it not be misunderstood, however, that the law applicable in the instant matter F are the provisions of the Sale of Goods Ordinance Cap 214. If any provision thereto has been quoted in this judgment, this has only been so done for the purpose of lucidating any point in controversy, and also simply because the G provisions of the Ordinance have `hand and glove' relationship with the law of contract. The provisions of the Sale of Goods Ordinance would have been very much relevant here if the delivery of the goods under discussion were to be delivered by M/S BP (T) Ltd who were the seller of the products to the plaintiff. Now, can it be said that the defendant was an agent of M/S BP (T) Ltd? But what H ever was the case, the principle applicable is the same. The difference in this case is that the plaintiff is no longer bound to pay the purchase price of the goods to the defendant because that price was paid to M/S BP (T) Ltd. In a way, therefore, in my view, the position of the I
A defendant in this case was not different from that of a bailee who had nothing to do with ownership of the goods but possession thereof. Possession would pass away from him to the buyer or owner as soon as both possession and property (in terms of ownership) is wholly transferred to the buyer or owner. This is not what happened in this case. B
From the foregoing reasons and on the strength of the few authorities I have adopted and relied on I am satisfied that the defendant breached the contract thereby entitling the plaintiff to sue for damages. The law as to payment of price for delivery of goods still stands -- as per the common law principle; therefore the C buyer must be ready and willing to pay the price in exchange, as for instance, for the transportation of goods. The plaintiff in this case has been complained of by the defendant for not having paid the price for the delivery of the goods to the plaintiff. But since possession must go together with acceptance of the goods the D plaintiff was not legally bound to pay for the transportation of the goods as the latter were not accepted by him for the reasons already stated above. He is not, therefore, blamable for not paying the transport charges to the defendant who was as yet to deliver the goods to him. He is therefore exonerated from the blame and the defendant is not entitled to any damages -- as no breach was committed by the plaintiff. This terminates the second issue. E
After disposing of the two questions above the third question is no longer difficult. It goes without saying that the party who suffered loss or damages was the plaintiff. But I am not intending to say that the defendant did not suffer any damages or F loss. Indeed he incurred loss when his lorry travelled to Musoma from Mwanza to deliver the said goods. Apart from costs spent to fuel the lorry tanker from Mwanza to Musoma the defendant was also expecting to get some profit from the price G agreed between him and the plaintiff, though controversial in evidence whether it was Shs 120 000/= or Shs 90 000/= single journey. Both the journeys, since the lorry had to return the rejected goods the price would have been either Shs 180 000/= or Shs 240 000/=. The defendant must have also paid allowances and H wages to the driver and turn-boy. But all these losses are not consequent to the plaintiff's negligence but to the defendant's employees, hence the maxim Volent none fit injuria. The defendant therefore carries injuries of his own making or mistakes. In sum the plaintiff suffered bona fide losses by no fault of his own and must be compensated by the party at fault. I say no more on the third issue, and I move to I
consider the last but not unimportant issue. A
Having held that the plaintiff deserves compensation, the question that follows is what quantum? Each case depends on the facts and circumstances. For instance in one English case: Thompson v Robinson (Gunmakers) Ltd (4), the defendant refused to accept delivery of a `Vanguard' car which they had contracted to buy B from the plaintiffs. The plaintiff returned the car to the supplier who took it back free from any claim for damages. The plaintiffs claimed as damages their loss of profit. The defendants said that the plaintiffs had suffered no loss of profit and the damages should be nominal. It was admitted that there was no shortage of `Vanguard' cars to meet all immediate demands in the locality. It was held by C Upjohn, J that the plaintiff's loss was the loss of their bargain and they were entitled to recover the loss of profit. And in Charter v Sullivan (5), the facts were similar to those in Thompson (supra) except that the car was a `Hillman' and the plaintiff could sell all the Hillman cars that he could get. The Court of Appeal held D that the plaintiff was entitled only to nominal damages, for he had shown no `loss directly and naturally resulting from the defendant's breach of contract'. This principle was enunciated a long time ago in England, in the case of Hadley v Baxendale (6), Alderson B delivering the judgment of the court, the substance of which reads as follows: E
`Now we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them had broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be F considered either arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both the parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated to the defendants by the plaintiffs, and thus known to both parties, the G damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under the special circumstances so known and communicated ...' H
The court further stated that, `on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally'. I
A Mnzavas J (as he then was), in considering a similar situation involving remoteness of damages and measure of damages in Nhuvya s/o Subajiwa v Jackson s/o Chilewa (7) followed, with approval, that principle in Hadley (supra) which to date is still good law.
Applying the above cited rule in the present case, the question is whether from the B facts of the case we can infer special circumstances which were wholly unknown to the party breaking the contract, namely, the defendant? The plaintiff claimed that he suffered damages or loss as the result of termination of his agency with BP (T) Ltd when the Western Branch Manager, one Mr Njau, served on him (plaintiff) a letter dated Monday, 24 October 1994, terminating his C dealership at BP Musoma Service Station as per exh P2. Such a circumstance, in my view, would not have been contemplated by the defendant when agreeing to transport and deliver the said goods to the plaintiff, that the plaintiff's agency would be terminated. It is a circumstance which is by far quite remote from the original D intentions of the parties and as such it would be absurd, if not unjust to direct such remoteness of damages against the defendant. As already stated above the defendant (DW1) repudiated the contract on 26 September 1994 and this means, E in my view, the loss in profit incurred by the plaintiff as the result of the breach is measured between the date of delivery was supposed to take place and the date of repudiation of the contract, which was 14 August 1994 and 26 September 1994. That was a period of forty two days.
It has been submitted, in evidence, that the plaintiff suffered loss of profits for a F continuous period of eight months. As was stated in Roth & Co v Tayson, Townsed & Co (8), and followed in the judgment of Dunkirk Colliery Co v Lever (9), per James, LJ, that the standard required of the injured party in the mitigation of damages is to ensure that he does not act unreasonably. The plaintiff, after the defendant repudiated the contract on 26 September 1994, decided to exercise the G option of accepting that repudiation and then proceeded to sue for breach of the contract. If he (PW1) chose to disregard to refuse to accept it then it would mean that the contract remained in full effect and the position might have been different. In a situation like the latter example it was observed in White & Carter (Councils) Ltd v McGregor (10) that the injured party has no duty to mitigate. In the light of many authorities I have read I am not in the inclination to accept the proposition by H the plaintiff that he is entitled to be compensated loss of profits for a period of eight months. The reason why his service station was out of rendering services to the members of the public for the period of I
eight months, as put and proposed by the plaintiff, is partly because of the refusal A by the BP (T) Ltd to service the contaminated underground tanks at the plaintiff's station and partly because the plaintiff's dealership was withdrawn by the proprietor of the Musoma Service Station, namely, BP (T) Ltd on 24 October 1994 (see exh P2). The non-service of the tanks was not anything to be contemplated in B the contract of the parties, and if any breach of contract was committed as the result of terminating PW1's agency the consequences thereof would not have affected the defendant. The plaintiff was not less required to do than what Scrutoon LJ, said in concurrence with the views of McCardie, J in Payzu Ltd v Saunders (11), that, and I quote: C
`I am of the same opinion. Whether it be more correct to say that a plaintiff must minimise his damages, or to say that he can recover no more than he would have suffered if he acted reasonably because any further damages do not reasonably arise from the defendant's breach, the result is the same ... Mr Mathews has contended that in considering what steps D should be taken to mitigate the damage all contractual relations with the party must be excluded. That is contrary to my experience. In certain cases of personal service it may be unreasonable to expect a plaintiff to consider an offer from the other party who has grossly injured him; but in commercial contracts it is generally reasonable to accept an offer from the E party in default. However, it is always a question of fact. About the law there is no difficulty.'
In the instant case, it has been contended on behalf of the defendant that the F plaintiff unreasonably refused to accept the offer by the defendant to pay or purchase the mixed up products at cost price. But, in my inclined view, I think that the plaintiff in deciding whether to accept the defendant's offer would greatly depend upon consideration as to the terms in which the offer was made, its bona G fides or otherwise, its relation to their own business method and financial position, and all the circumstances of the case. And, after all, I think that an acceptance of the offer would not preclude an action for damages for the actual loss sustained. In other words, the plaintiff could have accepted the offer to receive Shs 100 000/= by instalments per month until the whole amount of Shs H 2,000,000/= plus is paid off but that would not operate as a bar against the plaintiff to sue for other damages denied by the defendant. So, it seems right, therefore, to suggest that the plaintiff was entitled to take the first course as he did to claim for full damages, or he could have taken the latter proposed course and then taken action to I
A recover the balance. For this reason I find the defendant's argument, that is on the aspect of the plaintiff's refusal to accept the offer of payment by instalment at the rate of Shs 100 000/=, as not maintainable because the offer was apparently individualistic with inconsiderate self centred interest.
B What amount in terms of profit then did the plaintiff lose for a period of 42 days? It is the plaintiff's case that for the period his service station remained partially operative, only kerosene was selling, he was incurring a loss of Shs 30 000/= profit margin per day. That is, the Shs 30 000/= profit margin is exclusive of all other considerations as to costs and incidentals. Although such claim falls under C special damages and ought to be strictly proved, particularly by production of receipts, however, I tend to rely on the evidence of PW1 and Tabu (PW3) that the sales of fuel products at the station was two thousand litres plus. PW1 further said that one litre of petrol, without specifying whether it was super or regular, cost Shs D 210/= as purchase price and Shs 228/90= selling price at the material time. This was not disputed by the opposite party. The difference between selling price and purchase price, is Shs 33/10. Suppose this was the profit realized from the sale of one litre of petrol regular, a sale of one thousand litres per day would realize Shs E 33 100/= profit. In normal circumstances it was possible that the plaintiff was able to sell not less than one thousand litres of petrol, be it regular or super, whose prices differ. Computing this figure of Shs 33 100/= as a day's profit from the sales F of one thousand litres by the number of the days the plaintiff incurred loss in profit, which I have found to be forty two days, it would mean that the plaintiff would have earned Shs 1,260,000/= as profit. But the plaintiff has requested compensation of Shs 242 250/= being loss of profit on the consignment. There is G no prayer for loss of profit incurred during the period the defendant had kept the contract alive before repudiating it. The law is that the injured party must be compensated for what he asked for in his pleadings. Under the circumstances I will not award more than the Shs 242 250/= he had pleaded, being loss of profit on the consignment. Accordingly I grant the prayer sought at para 6(a) and (b), that is H the loss of the consignment in the sum of Shs 2,185,000 and Shs 242 250/= loss of profit on the consignment, respectively, although he could have earned more on the loss of profit had this claim been pleaded and argued properly. Item 6(c) falls under special damages which ought to be strictly proved. Definitely the plaintiff might have incurred costs in pursuing the matter when the I
mess up occurred at his business place. As the plaintiff has not strictly proved the A claim I refuse to grant it under this sub-heading. However, I reserve the claim to be considered under the head of general damages.
I now move to consider prayer 9(b) of the plaint, the plaintiff has prayed for Shs 40,000,000/= as general damages. Rufus Isaac, King's Counsel, in submitting on B the question of damages in a suit for defamatory libel against the plaintiff; in E Hulton and Co v Jones (12), contended that aggravated damages should not be assessed in the light of the negligent part only but also upon proof of evidence of malice on the part of the defendant, an argument which I find to be good and C sound. It has been said in many judicial authorities in the Tanzanian Jurisdiction and elsewhere, that damages for breach of contract must be in the nature of compensation not punishment, and that the general rule applicable to such cases was as in effect stated by Cockburn CJ in Engel v Fitch at 330 and I respectfully quote the salient words, which are: D
`By the law of England as a general rule a vendor who from whatever cause fails to perform his contract is bound; as was said by Lord Wensleydale in the case relevant, to place the purchaser, so far as money will do it, in the position he would have been performed. If a man E sells a cargo of goods not yet to come to hand, but which he believes to have been consigned to him from abroad, and the goods fail to arrive, it will be no answer to the intended purchaser to say that a third party who had engaged to consign the goods to the seller had deceived or disappointed him. The purchaser will be entitled to the difference between the contract price and the market price.' F
But there is more than that in the instant case. The goods were not delivered to the plaintiffs only but also the defendant's employees did worse than good to the plaintiff through their unchallenged negligent act. By contaminating the plaintiff's G underground tanks through mixing petrol and diesel made it impossible for the plaintiff to continue using the tanks commercially until they were serviced by the owners of the tanks -- M/S BP (T) Ltd. By regulation, as stated in evidence, the plaintiff could not take personal undertaking to service the tanks to enable him resume his business operation. We have been told in evidence that M/S BP (T) H Ltd became stubborn and were reluctant to perform their duties to put back the tanks into operational condition. It is not also in dispute that the plaintiff did not sit back to wait for a miracle to take place. He went as far as complaining to the Minister for Water and Energy, as it then was. It I
A is the plaintiff's evidence that the clean up exercise of the tanks was done about April 1995, which is about a period of eight months from 18 August 1994 when the plaintiff rang and complained to one Saukiwa, one of the BP's sales officer at the depot, Mwanza South. This piece of evidence has not been contradicted by the defence. Even if we were to assume, arguendo, that the tanks B were serviced after a period of three months, still, definitely, the plaintiff would lose about Shs 1,800,000/= as profit at the rate of Shs 30 000/= per day, which amount I consider to be reasonable in the circumstance. Although the defendant claimed that the entire lot of seven thousand five hundred litres of spoilt petrol and C diesel mixtures were destroyed by emptying the same into the waters of the Lake Victoria, nevertheless, there has not been one iota of evidence vouching for the alleged destruction, except for the bare words of DW1 and DW2. Both the law D and equity put me to an inclination that the plaintiff deserves some compensation resulting from the tortures which inflicted his anguish of mind while moving up and down to insist on the proprietors of the Musoma Service Station to make good the damage caused to the underground tanks caused by the E defendant's employees' negligence. Indeed, I have no doubt, the plaintiff was already in possession of business goodwill and ostensibly, I believe, he had established business relationships with at least few customers who were making use of his petrol service station. When this problem arose definitely some of those `permanent' customers must have lost that goodwill already established with the F plaintiff and therefore changed their minds and moved to other service stations they considered to be more reliable and reputable. On the premise I am lured to accepting the plaintiff's proposition that as a result of the mess up consequent upon the defendant's negligence, his business reputation was perceived G negatively. For the foregoing reasons I can conceive nothing better in the circumstances than ordering the defendant to compensate the plaintiff (PW1) the damage he suffered, and for this I decree a sum of Shs 1,800,000/= as general damages.
H Also I allow the plaintiff's prayer 9(c) to the effect that the defendant is condemned to pay interest on the decretal amount at the court's rate from the date of judgment untill when payment is made in full. Costs to the plaintiff as against the defendant at para 9(d) of the plaint.
The plaintiff had stated at para 5(c) of the plaint that the plaintiff would seek to rely on the doctrine of res ipsa loquitor; it is strange, however, the plaintiff's counsel, Mr Magafu, did not seem I
eager to draw to its attention (that legal defence) in his submission, although he A simply submitted that when a person fails to fulfil a duty to take care he is responsible for this act, even though he acts as a servant. He referred the court to an English case Yuille v B & B Fisheries (Leigh) Ltd and Bates (14). Mr Magafu B sent to us his written submission from Dar es Salaam. He did not attach to his written submission the substance of the decision in the case he cited and, on my part, with regret, I must confess that I have not had the opportunity to read the cited case because our library (at Mwanza) does not seem to be in possession of that case.
Be that as it may, I agree with the learned defendant's counsel that the doctrine of C res ipsa loquitur which the plaintiff sought to rely on applies to negligent liability cases in which, inter alia, there is no direct evidence as to why and how the occurrence, consequent upon negligence, took place, and therefore, leave the evidence adduced before the Court for the latter to draw reasonable inference D from the facts available and the circumstances therefrom and make deduction as what was the probable cause of the accident or occurrence. As stated in the Halsbury's Laws of England, 3rd ed, vol 28, para 81 at 79, that the maxim res ipsa E loquitur applies only where the causes of the accident are unknown but the inference of negligence is clear from the nature of the accident, and the defendant is therefore liable if he does not produce evidence to counter inference, and this proposition was discussed in McArthur v Dominion Cartridge Co (15). If the F causes are sufficiently known, the case ceases to be one where the facts speak for themselves and the court has to determine whether or not, from the known facts, negligence is to be inferred -- also see Barkway v South Wales Transport Co Ltd (16) House Lords at 394, per Lord Porter. In the East African situation, the G doctrine was considered, though motor accident cases, in Dewshi v Kuldp's Touring Co (17); Embu Public Road Services Ltd v Riimi (18); Msuri Muhhidn v Nazzor Bin Seif El Kassaby and Another (19); but to mention a few. The significance of the rule (doctrine) in all these cases is that a defendant can only be successful in relying on the doctrine if he can show or prove that there was no H negligence on his part which contributed to the occurrence (accident), or that there was a probable cause of the accident which did not connote negligence on his part, or the accident or occurrence was due to circumstances not within his control. It is on such facts or circumstances a Trial Judge or magistrate can make a finding of fact as whether a defendant has succeeded in establishing the facts which rebut the presumption of negligence on his part. Once the defen- I
A dant's explanation is accepted as being true, the burden to prove that the defendant was negligent still remains on the plaintiff.
In the present case I am not eager to delve at lengths into the various cases in which the doctrine of res ipsa loquitur was discussed because I have already made a finding to the effect that it is the defendant who by necessary inference B from the evidence available tacitly admitted to have negligently mixed up petrol and diesel thereby contaminating the plaintiff's underground tanks. I rejected the defendant's evidence that it was the plaintiff's employee (PW3) who was negligent by showing DW2 and DW1's driver the wrong tanks and consequently resulted C into the emptying of the petrol and diesel into wrong underground tanks. Thus, having rejected the defendant's defence, it follows as day follows night that the defendant's counter claim abysmally fails. I dismiss the counter claim with costs to the plaintiff. In sum, the plaintiff's claim succeeds, but to the following extent as hereunder shown: D
(1) The claim of Shs 40,000,000/= as per para 9(b) of the plaint is reduced to Shs 1,800,000/=;
(2) the plaintiff to be compensated Shs 2,185,000/= being loss of the E consignment of seven thousand five hundred litres of petrol as prayed at para 6(b) of the plaint, and Shs 242 250/= loss of profit on the consignment, thus making a total of Shs 2,427,250/=;
(3) Interest on the decretal amount at the court's rate from the date of judgment till when payment is made in full, and F
(4) Costs to the plaintiff as against the defendant as prayed at para 9(d) of the plaint.
1997 TLR p137
