Fast Forward International (Z) Limited v Joseph Mulaisho T/A Njange Enterprises (HP 2352 of 2015) [2020] ZMHC 88 (1 September 2020)

Key Facts

Transaction Type

Issues

• The court assessed the validity of the Plaintiff's claim for USD 9,220, comprising USD 2,500 in unpaid ocean freight and a USD 6,720 loan provided to the Defendant for purchasing additional goods. The Defendant argued he only borrowed USD 2,500. The court found the Plaintiff's evidence, including an invoice, credible, confirming the total debt of USD 9,220.
• The Defendant's counter-claim sought USD 39,233 (value of goods) and USD 500 in travel expenses, alleging the Plaintiff failed to deliver the goods to Ndola. The court dismissed the counter-claim, finding the Defendant responsible for the inordinate delay in clearing the goods at the port, which led to their auctioning. The court ruled the Plaintiff had no obligation to deliver to Ndola, as the agreement was 'port to port,' and the Defendant's claims for a refund and damages were untenable.
• The court determined the auction of the goods after they overstayed at the Dar es-Salaam port was due to the Defendant's failure to clear them within the 14-day grace period. The Defendant argued the Plaintiff was at fault, but the court held the Defendant responsible for the accrued port charges and subsequent auction. The Defendant's claim for the proceeds of the auction was not pleaded, making it unattainable.
• The court had to resolve whether the verbal shipping agreement between Fast Forward International (Z) Limited and Joseph Mulaisho was 'port to port' (delivery to Dar es-Salaam only) or 'house to house' (delivery to Ndola, Zambia). This distinction determined the Plaintiff's obligations and the Defendant's responsibility for port charges and further transportation. The Plaintiff's evidence, including the Bill of Lading and freight cost of USD 2,500, supported a 'port to port' arrangement, while the Defendant claimed 'house to house' at USD 6,500. The court concluded the agreement was 'port to port,' absolving the Plaintiff of further delivery duties.

Holdings

Remedies

• The Defendant's counter-claim was dismissed. The court found the counter-claim untenable as the Plaintiff's obligation was limited to port-to-port delivery, and the Defendant failed to clear goods within the required timeframe.
• The court allowed the Plaintiff's claim for USD 9,220.00, which includes unpaid ocean freight and a loan. The claim shall carry interest at 4% per annum from the date of the writ of summons to the date of final payment.
• Costs are awarded to the Plaintiff to be taxed in default of agreement.
• Leave to appeal is granted.

Contract Value

Monetary Damages

Legal Principles

Key Disputed Contract Clauses

• The court assessed the validity of the USD 6,720.00 loan the Plaintiff provided to the Defendant for purchasing additional goods to fill the container. The Defendant disputed this amount, claiming he only borrowed USD 2,500.00. The court found the Plaintiff's evidence, including an invoice, credible, confirming the loan amount of USD 6,720.00. This determination was critical to the total debt calculation (USD 9,220.00) and the court's conclusion that the Defendant's testimony was inconsistent with documentary evidence.
• The court examined the contractual obligations of the consignee (Defendant) to clear goods within 14 days of arrival at the Port of Dar es-Salaam and pay port charges. The Defendant argued the Plaintiff was responsible for delivery to Ndola, but the court found the agreement only required 'port to port' delivery. The Defendant's failure to clear the goods within the stipulated period led to their auctioning by the Tanzania Ports Authority, which the court attributed to his inaction, not the Plaintiff's breach.
• The court analyzed the verbal shipping agreement between the parties, focusing on whether it was 'port to port' (delivery to Dar es-Salaam only) or 'house to house' (delivery to Ndola, Zambia). The Plaintiff's evidence, including the Bill of Lading and freight amount of USD 2,500.00, supported a 'port to port' arrangement, while the Defendant claimed 'house to house' at USD 6,500.00. The court concluded the agreement was 'port to port,' limiting the Plaintiff's obligations to delivery at the port and absolving them of responsibility for further transportation.

Judge Name

Passage Text

• I am inclined to believe the Plaintiff's witness that the shipping arrangement was port to port delivery. Even the value of freight pegged at USD 2,500.00 reasonably speaks to the fact that the arrangement was a port to port delivery otherwise, it makes no business sense that the Plaintiff would have agreed to transport the goods via house to house at an unrealistic value of USD 2,500.00.
• All in all, the Plaintiff's claim succeeds, the claim of USD 9,220.00 is allowed and shall carry interest at 4 per cent per annum from the date of the writ of summons to the date of final payment. The counter-claim is dismissed.
• the Defendant was indebted to the Plaintiff in the sums of USD 2,500.00 for unpaid ocean freight and USD 6,720.00 as a loan, bringing the total to USD 9,220.00.

Damages / Relief Type