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/COUNTERCLAIMANT

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 counterclaimant and Joseph Kusaga (2nd defendant) on

8th June, 2017. The 1st defendant’s claim against the counterclaimant

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

500,000,000/=).
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 Upon being served with the 1st defendant’s plaint, the

counterclaimant filed a written statement of defence in which she raised

a counterclaim against the 1st defendant (the plaintiff in the main case)

and the 2nd defendant. The counterclaimant claimed for judgment,

decree and orders against the 1st and 2nd defendants jointly and

severally, as follows: -

(a) payment of a total United States Dollars Thirty

Seven Thousand Two Hundred and Seven Only (USD
37,207.00), Tanzania Shillings One Billion, Four
Hundred Forty Two Million, Three Hundred Ninety
Thousand, Six Hundred and Forty Two Only (TZS
1,442,390,642/=) being specific damages outstanding
under the terms of the Agreement; and
(b) payment of general damages for breach of the
terms of the Agreement to assed (sic) by the Court,
estimated at Tanzanian Shillings Three Billion (TZS
3,000,000,000/=); and
(c) payment of interest on the decretal sum at Court’s rate
from the date of judgment till full satisfaction of the
entire decretal sum; and
(d) for costs of the suit; and
(e) for any other relief(s) the Court may deem fit to
grant.

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 Apart from defaulting to enter appearance, the 2nd defendant

failed to file his written statement of defence. In consequence, this

Court ordered for the hearing to proceed ex-parte against him as

provided for under Order VIII, Rule 14(1) of the Civil Procedure Code,

Cap. 33, R.E 2019 (the CPC).

Before the final pre-trial and scheduling conference could

commence, the counterclaimant and 1st defendant prayed for time

within which to settle the matter out of court. This Court welcomed the

prayer. The duo arrived into an amicable settlement. They executed a

deed of settlement dated 31st October, 2022 and filed it on 8th

November, 2022. On the next day, 9th November, 2022, this Court

recorded the said deed of settlement under Order XXIII, Rule 3 of the

CPC.

Basing on the terms of the deed of settlement, the main suit and

counterclaim were marked settled between the 1st defendant (the

plaintiff in the main case) and the counterclaimant (defendant in the

main case). The following terms of the deed of settlement were

recorded to form part of judgement and decree of this Court as between

the counterclaimant and the 1st defendant:-

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 1. That the two parties have reached a settlement
consensually and without admission to liability.
2. That the Plaintiff agrees to withdraw her case in its
entirety against the Defendant in full settlement of all
claims under the suit. Moreover, the
Counterclaimant in the counter claim agree to
withdraw the suit against the Plaintiff/1st
Defendant to the counterclaim (Wasafi
Limited) only in full settlement of all claims
under this suit.

3. This settlement is full and final settlement of all

claims, demands of the Parties and the terms of this
settlement shall constitute a judgment and decree of
the Court. In addition, any violation will face
Execution consequences.
4. That the Parties agree that this Deed settles all
matters pending between the Parties, and each party
to bear its own costs. (Emphasize is supplied).

Subsequent to the foregoing, the counterclaim proceeded ex-parte

against the 2nd defendant.

For the purpose of a better understanding of what underlies the

counterclaim and this ruling, the factual context is briefly as follows: On

3rd June, 2015, the counterclaimant was registered as the owner of the

product known as “Diamond Karanga” with Reg. No. TAN 15 FD 0158,

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(henceforth “the product”). On 8th May, 2017, the counterclaimant

entered into a tripartite agreement with the 1st and 2nd defendants for

marketing and promotion of the product (henceforth “the agreement”)

across all the 1st and 2nd defendants’ social media platforms, cable

television and radio programming network owned by them for a period

of 20 years but subject to review by the parties.

According the agreement, parties agreed, among others, that;

one, the counterclaimant was responsible for manufacturing, supplying

and delivering of the product to her consumer, while the defendants

were responsible for marketing the product; two, in consideration to the

agreement, the counterclaimant agreed to pay commission of TZS

1,650/= and TZS 1,350/= of each sale of one sachet of the product to

the 1st and 2nd defendants, respectively.

The counterclaimant claims to have paid the commission due to

the 1st and 2nd defendants in total amount of TZS 269,150,950 and TZS

221,457,807 respectively, for the period commencing from July, 2017 to

February, 2019. It is her contention that the defendants ignored,

neglected and/or refused to perform their part of the obligation to

market and promote the product as agreed to in the agreement.

According to the counterclaimant, the defendants only marketed and

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promoted the product for the months of July, August and September,

2017 and January, 2018. It is further contended that, by reasons of the

failure of the defendants to perform their part of the agreement, the

counterclaimant suffered loss of earnings by virtue of total costs

incurred vis-a-vis the total sale made for the years 2018 to 2019;

specific damages; and general damages. Consequently, the

counterclaimant sued both defendants for the above stated reliefs.

As stated earlier, the counterclaimant withdrew the suit against

the 1st defendant to the counter-claim only and thus, the matter

proceeded ex-parte against the 2nd defendant. In the course of hearing

the suit against the 2nd defendant, the issues recorded for determination

by this Court were; first, whether the counterclaimant and the

defendants to the counterclaim entered into a tripartite agreement;

second, whether the second defendant to the counterclaim breached the

tripartite agreement; third, to what reliefs are the parties entitled to.

In order to prove her case against the 2nd defendant, the

counterclaimant called one witness, namely, Hassan Fayad (PW1), who

introduced himself as the shareholder and director of Smart Industry

Limited. His evidence was adduced by way of witness statement and

was supported by a total number of 14 exhibits (Exhibits P1 to P14).

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After closure of the counterclaimant’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 counterclaimant’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 counterclaimant. 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.

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 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 counterclaimant. In alternative, he

prayed for leave to amend the counterclaim in order to substantiate the

counterclaimant’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

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 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 counterclaimant

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,

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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 counterclaimant

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

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Court: Ruling delivered through video conference this 18th day of

August, 2023 in the presence of Ms. Norah Marah, learned advocate for

the counterclaimant and Dr. Aloys Rugazia, learned advocate for the 2nd

defendant.

Right of appeal explained.

S.E. KISANYA
JUDGE
18/08/2023

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