DAR ES SALAAM: THE High Court, Dar es Salaam Sub-Registry, has ordered M/S Intertrade Commercial Services (P) Limited to pay about 10bn/- to Tanzania Electric Supply Company Limited (TANESCO) for breach of contract over supply of 150,000 electric metres.
Judge Anold Kirekiano reached into such a decision after granting an ex-perte judgement against Intertrade Commercial Services, a company dealing with exportation and distribution of electrical power transmission and distribution equipment, the defendant.
“The defendant should pay (TANESCO) a total of USD 3,424,723.5 and 147,441,546/- being refund of consideration paid for unsupplied equipment. The defendant should pay (TANESCO) USD 200,000 being general damages for breach of contract,” the judge declared.
Furthermore, he directed the defendant to pay (TANESCO) interest at the rate of seven per cent per annum on the decretal amount from the date of the judgment until the same is satisfied in full and ordered the defendant company to pay costs of the suit.
Ex-parte judgment is the one which is issued by the court when one party to the proceedings fails to appear to give his side of evidence.
In this case, the defendant could not present his defence against the suit by the Attorney General and TANESCO, the plaintiffs. Before granting the orders, the judge determined some issues, notably whether there was breach of contracts and whether the plaintiffs suffered any damages.
Having considered the evidence on record, the judge concluded in his judgment dated February 6, 2024 that the defendant breached the agreements executed with TANESCO on October 25, 2013 and April 23, 2015.
He noted that the plaintiffs’ side of the bargain in the first contract was to pay an advance payment of 10 per cent, USD 1,340,821.98 and also had to pay 40 per cent, but it appears from the plaint and evidence they paid 45 per cent of the contract price, USD 1,843,235.11.
Available evidence, the judge said, shows that on May 31, 2017, USD 604,100.78 was paid and on July 3, 2017, USD 604,100.78 was paid to the defendant account.
“It is noted that when the defendant raised the invoice to be paid the said 45 per cent (USD 1,843,235.11) there was acknowledgement indicating that 10 per cent was fully paid at USD 1,340,821.98. As such the other amount 10 per cent was paid (147,441,546/-)” he said.
With regards to the second contract, the judge noted evidence indicating that the plaintiff paid 10 per cent of the contract (USD. 47,657), but also other advance payment 40 per cent of USD 193,009.41.
“From the above, it is clear that TANESCO performed her side of the bargain to the extent indicated which made it obligatory for the defendant to supply the goods as agreed,” he said.
The judge noted further from the evidence on record indicating that there was a delay in delivery of the consignment of the said 150,000 metres, this was according to the defendant’s letters in response to the plaintiffs’ reminder.
According to such correspondences, on September 28, 2017, the defendant indicated the delivery schedule of the consignment, that is, 50,000 metres were to be delivered within 14 days, 50,000 within 21 days and 50,000 within 30 days.
“This was not implemented. As such according to a reminder letter, no further communication was heard from the defendant. The evidence was clear that in the end, the defendant did not deliver the goods,” he said.
On whether the plaintiffs suffered damages, the judge noted from amended plaint the plaintiff stating that, the defendant’s failure to deliver the equipment by contract affected TANESCO’s ability to provide electricity services to its clients. This was amplified in the plaintiffs’ witness testimony who went on to say that such situation also affected the reputation of TANESCO to its clients.
He also state that to conduct its operation TANESCO was forced to re-budget for the equipment which was unsupplied.
“I have taken into consideration that TANESCO being a parastatal organisation tasked with the generation, transmission and distribution of electricity had duty to deliver services at the standard expected by its customers. It is thus certain that TANESCO suffered damages,” he ruled.
Facts show that in 2013 and 2015 respectively, TANESCO and M/S Intertrade Commercial Services (P) Limited entered into two contracts for supply of tools and equipment for power distribution.