M/s Musilanga Engineering vs P.F. Nyakutonya Nyamgesera & Another [1987] TZHC 15 (16 June 1987)


Mwalusanya, J.: The plaintiff is claiming a sum of sh.42,000/= from the defendant being the value of 300 bags of cement which defendant defaulted to deliver under a contract between them. G
It is common ground that the defendants by their letter dated 1st June 1981 which is Exh. A in Court, agreed to supply 720 bags of cement to the plaintiff without any further payment from the said plaintiff.  The plaintiff testified that the supply of cement was without payment because he had already given some timber to the said defendant company.  However the  H defendant stated that he had just undertaken to pay the debt of his sons who own the Musoma Foodstuffs Trading Co. which owed the plaintiff for the timber he had supplied them.  The defendant denied that the timber had been supplied to him.  I
Whatever the case, it is obvious that the defendant was in

A breach of the contract for the debt that was assigned to him under the doctrine of novation.  This doctrine recognises that one party to a contract can release the other and substitute a third person who then undertakes to perform the released person's obligations.  Thus by agreement, a new contract replaces the original contract.  That doctrine is recognised in our country and it is under s. 62 of the Tanzania Contract Act. Cap. 433, which reads:  B
   If the parties to a contract agree to substitute a new contract for it or to rescind or alter it, the original contract need not be performed. C
That is exactly what happened here.  By virtue of the letter Exh. A there was created a new contract between the plaintiff and defendant instead of the original contract between the plaintiff and Musoma Foodstuffs Trading Co.  Therefore as to  D what transpired earlier between those two old contracting parties is irrelevant here.  We are only concerned with the new contract.  The doctrine of novation was a subject matter of discussion and approval by the  East African Court of   E Appeal in Settlement Funds Trustees v Nurani: [1970] E.A. 663 (C.A.) whereof it was held to be a sound principle of law, though it was found in that case not be applicable as no new contract had been substituted.  And a distinguished legal writer Prof. R.W. Hodgin in his book Law of Contract in East Africa (1975) E.A.L.B. at pp. 176 - 177 states that the doctrine of novation is applicable in East Africa in the circumstances just discussed.  I agree.  F
Therefore even if there was originally no privity of contract between plaintiff and defendant, yet I am satisfied that by the doctrine of novation a new contract between them was created on 1/6/1981.  The defendant is bound by that contract   G If those who assigned the debt to him have defaulted on their part, then defendant can sue them.  But that is not the concern of the plaintiff.
In the event I enter judgment for the plaintiff as prayed.
Order accordingly. H


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