THE High Court’s Commercial Division has ordered Tech Hub Limited to pay over 315m/- to Vodacom Tanzania PLC being an outstanding amount on account of the services rendered under the Bulk SMS Service Agreement.
Judge Cyprian Mkeha ruled in favour of the mobile service provider company, the plaintiff, after granting a default judgment after Tech Hub Company, the defendant, had failed to give their defence evidence to the claims.
He said that it was not disputed that service was affected to the defendant by way of publication of a summons to file a written statement of defence through newspapers when the first attempt to effect service proved futile. “To date, a written statement of defence has not been filed.
Therefore, conditions for granting a default judgment are in existence. For the reasons hereinabove, default judgment is entered in favour of the plaintiff,” the judge said.
Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party.
Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. In terms of the pleadings, he noted, it appeared the plaintiff’s claim against the defendant arises from an agreement signed by the parties on October 08, 2018.
According to him, under the agreement, the plaintiff had to provide bulk SMS Services to the defendant in accordance with the terms and conditions of the agreement and it appeared the plaintiff provided the agreed services to the defendant.
“But, when the plaintiff issued various invoices worth 393,569,120/- covering a period between October 2018 to August, 2019, the defendant merely paid 78m/-. Up to the time when the suit was instituted, the 315,569,120/- remained unsettled, irrespective of demand for payment from the plaintiff,” he said.
Pleadings indicate that on October 08, 2018, the plaintiff and the defendant entered into the Bulk SMS Service Agreement where the plaintiff agreed to provide bulk SMS services to the defendant in accordance with terms and conditions contained therein. In line with the terms of the Agreement, the plaintiff provided bulk SMS services to the defendant and issued various invoices to the defendant for settlement. Whereas invoices worth 393, 569,12O/- covering a period between October 2018 to August, 2019 were raised. However, in breach of the Agreement, the defendant paid only 78m/-.
Despite the plaintiff’s demand and followup, the defendant failed to pay the invoiced amount which stood at 315,569,120/- when the case was instituted before the court.
When the case was registered, the court ordered a summons to file a written statement of defence to be served upon the defendant.
On December 08, 2020, the advocate for the plaintiff notified the court that the defendant had not been found. An affidavit regarding failure of service to the defendant was filed in court.
Afterwards, a prayer for substituted service by way of publication was made by the advocate and granted by the court. By way of publication, through the newspapers, the defendant was again ordered to file defence.
According to the advocate for the plaintiff, up to August 04, 2021, the defendant had not filed a written statement of defence. Pursuant to Rule 22(1) of the High Court (Commercial Division) Rules, on September 01, 2021, the plaintiff filed an application praying that a default judgment and decree be entered against the defendant for reliefs prayed in the plaintiff.