Author: FAUSTINE KAPAMA
AfricaPress-Tanzania: THE High Court (Commercial Division) has ordered businesswoman Joyce Mbuyeku to pay Alaf Limited over 1.038bn/- being outstanding amount representing the value of goods, which are steel products and roofing materials, supplied and received on a credit basis.
Judge Deo Nangela issued such an order after entering a default judgment against Ms Mbuyeku, the Administratix of the estate of Esmail Mbuyeku, as defendant, having failed to file her written statement of defence in a suit lodged by Alaf Limited, the plaintiff.
“In terms of Rule 22(1) of the High Court (Commercial Division) Procedure Rules, 2012 (as amended in 2019), this Court do hereby enters judgment in default and decree in favour of the plaintiff. The defendant is ordered to pay to the plaintiff 1,038,099,550/-,” the judge declared.
He, however, directed the decree should not be executed unless the decree holder had, within a period of 10 days from the date of judgment, published a copy of it in at least two widely circulated newspapers in the country and after a period of 21 days from the date of expiry of the 10 days, had elapsed.
Default judgment is a binding judgment in favour of either party based on some failure to take action by the other party.
Most often, it is a judgment in favour of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default.
Dr Nangela noted that the defendant was given ample time to file her defence and apart from being served physically and declining to accept the service, the plaintiff went ahead and published summons in a newspaper on April 6, 2020, but even so the defendant did not file her defence nor appear in court.
According to him, it was also clear that the plaintiff filed affidavits to prove the claims. The grant of a default judgment is made possible where there is proof of service to the defendant, but failed to file a written statement of defence.
The judge named another condition as the plaintiff making an application to the court in prescribed form in accordance with court rules and the form must be accompanied by an affidavit in proof of the claim.
“There is no doubt that the plaintiff in this case has satisfied the above require ments. As it stands, given the evidence available on record as per the annexure to the affidavits which are also annexed to the plaint, the outstanding amount claimed by the plaintiff is 1,038,099,500/-,” he said.
Judge Nangela also noted that there was no dispute that the two parties were having a business relationship and there was no dispute that the plaintiff demanded from the defendant payment of the sum and the latter failed to honour the demand despite acknowledging the amount owed to the plaintiff.
The two parties have been in business relations for some time, whereby, the defendants had the advantage of purchasing large consignments of roofing materials from the plaintiff either with cash or on credit.
In their arranged manner of doing business, however, it was agreed that the defendants would press for orders for the supply of goods and the plaintiff would process such orders and deliver the goods to the defendant with a delivery note to be acknowledged by the defendant upon satisfaction and receipt.
It is the plaintiff’s assertion that at several intervals the defendant used to confirm in writing the outstanding debt balance and, the last communication which was April 19, 2018, the defendant confirmed that, as on March 31, 2018, the outstanding debt stood at 1,038,099,550/-.
The plaintiff averred that, the defendant never reduced or cleared the outstanding debt despite there being demand to do so.
It is alleged that the plaintiff suffered serious financial difficulties due to the defendant’s conduct, as he was denied an opportunity to reinvest the money to expand his business.
The plaintiff, thus, filed the suit, claiming for the entire outstanding debt, interest thereon, as well as general damages.
