Kesi ya madai ya Diamond na watengenezaji wa 'Diamond Karanga' Kesi ya madai ya Diamond na watengenezaji wa 'Diamond Karanga' TZS 2,250,000,000/=
Kesi yamalizika kwa SMART INDUSTRY LIMITED wenye karanga kukubaliana kumalizana nje ya mahakama kwa kiasi walichokubaliana baina yao.
Hapo kabla kampuni ya karanga ya SMART INDUSTRY LIMITED ilifungua madai kuwa Wasafi Limited na Joseph Kusaga hawakutimiza ipasavyo makubaliano ya ku promoti kisawa sawa bidhaa yao ya karanga.
Hata hivyo kesi ya madai hayo ya SMART INDUSTRY LIMITED iliyofikishwa mbele ya Mahakama imeisha baada ya makubaliano baina ya SMART INDUSTRY LIMITED na Wasafi Media kumalizana kwa makubaliano nje ya Mahakama.
WAKILI AFAFANUA KESI ILIVYOMALIZWA
View: https://m.youtube.com/watch?v=8r47EymLP1k
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
IN THE SUB - REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM
CIVIL CASE NO. 160 OF 2020
SMART INDUSTRY LIMITED .....................PLAINTIFF/COUNTER CLAIMANT
VERSUS
WASAFI LIMITED ................................................................1ST DEFENDANT
JOSEPH KUSAGA .............................................................. 2ND DEFENDANT
RULING
21st July & 18th August, 2023
KISANYA, J.:
The 1st defendant, Wasafi Limited instituted a suit against Smart
Industry Limited (henceforth “the counterclaimant”). Her suit was based on breach of a tripartite agreement which was entered by her (1st defendant), the counter claimant and Joseph Kusaga (2nd defendant) on 8th June, 2017. The 1st defendant’s claim against the counter claimant were, inter alia, for permanent injunction to continue manufacturing,
branding and selling of the product; two, payment of specific damages amounting to Tanzania Shillings Two Billion Five Hundred Million (TZS 2,250,000,000/=) for breach of contract; and three, payment of general damages to the tune of Tanzanian shillings Five Hundred Million (TZS).
7
After closure of the counter claimant’s case, her counsel filed the closing final submissions. For the reasons to be apparent later, I find no need of summarizing the counterclaimant’s evidence and the final closing submissions.
In the course of composing the judgment, I noticed that in terms
of the deed of settlement, the counterclaimant withdrew the suit against the 1st defendant in full settlement of all claims under this suit.
Considering further that the reliefs for special and general damages were against both defendants, jointly and severally, I wanted to satisfy myself on whether the suit could proceed against the 2nd defendant
without amending the counter-claim or filing a separate suit against the 2nd defendant. In that regard, the counter claimant’s counsel was
recalled to address this Court on the said issue.
On the date scheduled for hearing of the issue raised by the Court, Dr. Alexander Nguluma, assisted by Ms. Norah Marah, both learned advocates represented the counter claimant. The 2nd defendant enjoyed the legal services of Dr. Aloys Rugazia, also learned advocate, however, he had no right of audience as the matter proceeded ex-parte against
the 2nd defendant.
8
Responding to the issue raised by the Court, Dr. Nguluma
submitted that the claims by the counterclaimant were against the 1st and 2nd defendants jointly and severally. He argued that in the event the case is decided in favour of the counterclaimant, the defendants will be jointly and severally liable for the damages suffered by the plaintiff. He was of the view that, this being a counterclaim, it cannot be withdrawn, more so, because the court had ordered for the hearing to proceed
ex-parte. The learned counsel urged this Court to make its decision basing on the evidence adduced by the counter claimant. In alternative, he
prayed for leave to amend the counterclaim in order to substantiate the
counter claimant’s claims against the 2nd defendant only.
From the above submission, I wish to restate at the outset that,
the reliefs prayed for by the counterclaimant were against the defendants jointly and severally. According to Black’s Law Dictionary, 8th Edition at page 933, the term “joint and several liability” is defined to
mean: “Liability that may be apportioned either among two
or more parties or few selected members of the group, at the adversary discretion. Thus, each liable party is individually responsible for the entire
obligation, but a paying party may have a right of contribution and indemnity from non-paying parties.”
Flowing from the above definition, it is clear that joint or several liability arises where two or more persons are found liable for damages. Further, if the case is resolved in favour of the plaintiff, he is at liberty to
collect or execute the entire decretal sum from one of the parties or both or all parties. However, a party who pays the decretal sum is entitled to recover from the other party or parties.
On the foregoing, the counterclaimant allotted her claims against both defendants. Thus, I entirely agree with Dr. Nguluma that, the 1st and 2nd defendants are liable for the reliefs claimed in the counterclaim.
However, clause 2 of the deed of settlement which was recorded to form part of the decree of this Court shows that the counter claimant withdrew the suit against the 1st Defendant only but in full settlement of all claims in this suit. This implies that the first and second defendants
ceased to be jointly and severally liable to the reliefs sought in the counterclaim. Yet, the plaintiff through PW1 has prayed for the damages
which were also against the 1st defendant while the claims against her (1st defendant) were marked withdrawn in settlement of all claims under this suit. In that respect and being guided by the provision of Order VIII,
Rule 12 of the CPC, I am of the view that the counterclaim against the 2nd defendant may be conveniently disposed of by a separate suit instead of making an order of amending the counterclaim as prayed by
Dr. Nguluma.
In the upshot of the above reasons, I hereby strike out the
counterclaim under Order VIII, Rule 12 of the CPC. The counter claimant is at liberty to file a separate suit against the 2nd defendant in accordance with the law. Considering the circumstances of this case, I
make no order as to costs.
It is so ordered.
Dated this 18th day of August, 2023.
S.E. KISANYA
JUDGE
18/08/2023
Source : Smart Industry Limited vs Wasafi Limited and Another (Civil Case No. 160 of 2020) [2023] TZHC 20223 (18 August 2023)
Kesi yamalizika kwa SMART INDUSTRY LIMITED wenye karanga kukubaliana kumalizana nje ya mahakama kwa kiasi walichokubaliana baina yao.
Hapo kabla kampuni ya karanga ya SMART INDUSTRY LIMITED ilifungua madai kuwa Wasafi Limited na Joseph Kusaga hawakutimiza ipasavyo makubaliano ya ku promoti kisawa sawa bidhaa yao ya karanga.
Hata hivyo kesi ya madai hayo ya SMART INDUSTRY LIMITED iliyofikishwa mbele ya Mahakama imeisha baada ya makubaliano baina ya SMART INDUSTRY LIMITED na Wasafi Media kumalizana kwa makubaliano nje ya Mahakama.
WAKILI AFAFANUA KESI ILIVYOMALIZWA
View: https://m.youtube.com/watch?v=8r47EymLP1k
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
IN THE SUB - REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM
CIVIL CASE NO. 160 OF 2020
SMART INDUSTRY LIMITED .....................PLAINTIFF/COUNTER CLAIMANT
VERSUS
WASAFI LIMITED ................................................................1ST DEFENDANT
JOSEPH KUSAGA .............................................................. 2ND DEFENDANT
RULING
21st July & 18th August, 2023
KISANYA, J.:
The 1st defendant, Wasafi Limited instituted a suit against Smart
Industry Limited (henceforth “the counterclaimant”). Her suit was based on breach of a tripartite agreement which was entered by her (1st defendant), the counter claimant and Joseph Kusaga (2nd defendant) on 8th June, 2017. The 1st defendant’s claim against the counter claimant were, inter alia, for permanent injunction to continue manufacturing,
branding and selling of the product; two, payment of specific damages amounting to Tanzania Shillings Two Billion Five Hundred Million (TZS 2,250,000,000/=) for breach of contract; and three, payment of general damages to the tune of Tanzanian shillings Five Hundred Million (TZS).
7
After closure of the counter claimant’s case, her counsel filed the closing final submissions. For the reasons to be apparent later, I find no need of summarizing the counterclaimant’s evidence and the final closing submissions.
In the course of composing the judgment, I noticed that in terms
of the deed of settlement, the counterclaimant withdrew the suit against the 1st defendant in full settlement of all claims under this suit.
Considering further that the reliefs for special and general damages were against both defendants, jointly and severally, I wanted to satisfy myself on whether the suit could proceed against the 2nd defendant
without amending the counter-claim or filing a separate suit against the 2nd defendant. In that regard, the counter claimant’s counsel was
recalled to address this Court on the said issue.
On the date scheduled for hearing of the issue raised by the Court, Dr. Alexander Nguluma, assisted by Ms. Norah Marah, both learned advocates represented the counter claimant. The 2nd defendant enjoyed the legal services of Dr. Aloys Rugazia, also learned advocate, however, he had no right of audience as the matter proceeded ex-parte against
the 2nd defendant.
8
Responding to the issue raised by the Court, Dr. Nguluma
submitted that the claims by the counterclaimant were against the 1st and 2nd defendants jointly and severally. He argued that in the event the case is decided in favour of the counterclaimant, the defendants will be jointly and severally liable for the damages suffered by the plaintiff. He was of the view that, this being a counterclaim, it cannot be withdrawn, more so, because the court had ordered for the hearing to proceed
ex-parte. The learned counsel urged this Court to make its decision basing on the evidence adduced by the counter claimant. In alternative, he
prayed for leave to amend the counterclaim in order to substantiate the
counter claimant’s claims against the 2nd defendant only.
From the above submission, I wish to restate at the outset that,
the reliefs prayed for by the counterclaimant were against the defendants jointly and severally. According to Black’s Law Dictionary, 8th Edition at page 933, the term “joint and several liability” is defined to
mean: “Liability that may be apportioned either among two
or more parties or few selected members of the group, at the adversary discretion. Thus, each liable party is individually responsible for the entire
obligation, but a paying party may have a right of contribution and indemnity from non-paying parties.”
Flowing from the above definition, it is clear that joint or several liability arises where two or more persons are found liable for damages. Further, if the case is resolved in favour of the plaintiff, he is at liberty to
collect or execute the entire decretal sum from one of the parties or both or all parties. However, a party who pays the decretal sum is entitled to recover from the other party or parties.
On the foregoing, the counterclaimant allotted her claims against both defendants. Thus, I entirely agree with Dr. Nguluma that, the 1st and 2nd defendants are liable for the reliefs claimed in the counterclaim.
However, clause 2 of the deed of settlement which was recorded to form part of the decree of this Court shows that the counter claimant withdrew the suit against the 1st Defendant only but in full settlement of all claims in this suit. This implies that the first and second defendants
ceased to be jointly and severally liable to the reliefs sought in the counterclaim. Yet, the plaintiff through PW1 has prayed for the damages
which were also against the 1st defendant while the claims against her (1st defendant) were marked withdrawn in settlement of all claims under this suit. In that respect and being guided by the provision of Order VIII,
Rule 12 of the CPC, I am of the view that the counterclaim against the 2nd defendant may be conveniently disposed of by a separate suit instead of making an order of amending the counterclaim as prayed by
Dr. Nguluma.
In the upshot of the above reasons, I hereby strike out the
counterclaim under Order VIII, Rule 12 of the CPC. The counter claimant is at liberty to file a separate suit against the 2nd defendant in accordance with the law. Considering the circumstances of this case, I
make no order as to costs.
It is so ordered.
Dated this 18th day of August, 2023.
S.E. KISANYA
JUDGE
18/08/2023
Source : Smart Industry Limited vs Wasafi Limited and Another (Civil Case No. 160 of 2020) [2023] TZHC 20223 (18 August 2023)
