20160218 TZHC Dar es Salaam5

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE NO. 167 OF 2013 DAVID A. NOBLET/A NOBLE CURATIVE & SCIENTIFIC EQUIPMENT ............................ PLAINTIFF V.

BEIJING CONSTRUCTION ENGINEERING GROUP ................................ DEFENDANT

JUDGMENT Date of last, Order 24/12/2015 Date of Judgment 18/2/2016 Shangwa, J. ) In this case, the plaintiff DAVID A. NOBLE T / A NOBLE CURATIVE & SCIENTIFIC EQUIPMENT is claiming against the defendant BEIJING CONSTRUCTION ENGINEERING GROUP for the following reliefs:- I I - l' 2 - 1. Payment of Tshs 2~- 0153~-982;910/ = for Mwanza Airport project.

2. Payment of interest on the said amount at the rate of 31 % per annum as from 11 th July, 2012 to the date of judgment and interest at the decretal sum at Court rate of 12% per annum from the date of judgment to the date offull and.final payment and costs. The basis for his claim is mentioned at paragraph 3 of his plaint where he alleges that he entered into agreement with the defendant to he paid 2% of the contract price for facilitation services which enabled the defendant to be awarded the contract for 3 construction and upgrading of Mwanza Airport worthy Tshs 103, 199,145, 545/= The defendant denies the plaintiff's claim. Hearing of this suit started on 11 th September, 2014. The following issues were framed for determination by this Court namely:- 1. Whether there was any valid Agreement between the plaintiff and the defendant for facilitation of award of tender for Mwanza Airport project. 4 2. Whether or not there were any services which were rendered to the defendant by the plaintiff 3. To what reliefs the parties a-,;e entitled to. The plaintiff David A Noble testified as P.W. 1 and called one witness on his behalf called Jones Peter Majura. In his testimony, the plaintiff told this Court that on 9 th February, 2010, he entered into an Agreement with the defendant as consultant for facilitating its business of road and building construction in Tanzania. He tendered

the said Agreement in evidence and it was admitted as 5 exhibit P 1. He said in clause 4 ( 1) of the said Agreement, it was agreed that the defendant will pay 3% of any project facilitated by him. Furthermore, he told this Court that on 9 th February, 2010, he entered into another Agreement. with the defendant. He tendered it in evidence as exhibit P 2. He said under this Agreement he was required to do the fallowing 1. To inform the defendant on prices of local materials such as sand, stones soils and pay to labourers.

2. To prepare responses to tenders. 6 3. To assist the defendant on obtaining visas, licences etc.

4. To negotiate on its behalf on matters concerning its business. - 5. To show the defendant various offices concerning their business. In addition to that the, plaintiff told this Court that he successfully facilitated the defendant in the construction of roads for BRT Kariakoo (Rapid Buses) and in the preparation of tender documents for construction of Mwanza Airport after having been asked to do so by E - mail sent to him by one David Zhang who is the Deputy General Manager of the 7 defendant company. He tendered the said E - mail in evidence and it was admitted as exhibit P 3. He said, the Agreement between him and the defendant was on a win- win basis and that his company proposed to the defendant USD 58,000,000/= equivalent to -· Tshs 103, 199,145,545/= for rehabilitation- of__ Mwanza Airport and that his Company's proposal was accepted by the Tender Board and the defendant won the tender. That the defendant had to pay him Tshs 2, 063, 982, 910/= which is equivalent to Tshs 103,199,145,545/= but he was not paid. That when he appealed to the defendant's Headquarters in Beijing, it was directed that the rate of Commission should be amended at a reduced rate from 2% to 1.5% which was never paid. 8 The plaintiff's claim was somehow supported by P.W. 2 Jones Peter Majura who told this Court that in June, 2011 he came back from China to Tanzania and went to the defendant's office with P.W.

1. That in the defendant's office, they· met the -Deputy --General __ _ Manager called David zhang who discussed with P.W 1 on how to assist them in doing preparation and submissions of tender documents for rehabilitation of Mwanza Airport. That P.W. 1 assisted the defendant in doing so and that the defendant won the tender and that by the time he returned to Beijing China for his Master's degree, P.W. 1 had not been fully paid. That he went to the Defendant's 9 Headquarters in Beijing where he was told that the plaintiff's claim will be reduced to 1.5%. The defendant company prayed the Court to dismiss the suit in its entirety with costs. It was argued that there was no contract between it-and the __ plaintiff with regard to the tender of upgrading Mwanza Airport. That the tender was awarded to the defendant because of its profile and experience such as construction of the National stadium, Zanzibar Airport etc and not because of the plaintiff's acts of lobbying or facilitation as alleged by the plaintiff. That the parties had agreed to settle their disputes through Arbitration. 10 The defendant called one witness on its side namely Guo xiangke, an Assistant General Manager of the defendant company. He told this Court that according to his office's record and according to what he knows, the plaintiff did not help the defendant in - - - - securing the tender for ·

rehabilitation - of -M-wanza- - ___ _ Airport project and is not entitled to get any payment from the defendant company. That both exhibit Pl and P 2 are not for Mwanza Airport upgrading project except that they are in respect of DSM BUS RAPID TRANSIT. That exhibit P 3 is a mere personal Communication. That he stayed in Mwanza for one and a half year during the upgrading process of Mwanza Airport but he never saw the Plaintiff visiting the site. 11 After going through the pleadings and evidence from both sides, let me now start to determine the issues before Court. On the first issue, the Court is asked to determine as to whether or not there was any - ·- valid agreement between the - ·- plaintiff - and the - - __ -·· defendant for facilitation of award of tender for Mwanza Airport project. Whereas there is evidence to show valid agreements between the plaintiff and the defendant with respect to the bidding process for tender NO AE/001/2009/10/HQ/1/35 for construction of Dar es Salaam Bus Rapid Transit (BRT) infrastructure- Phase 1 namely exhibits P 1 & P 2, there is no ... V 12 evidence to show that there was such contract between them-with respect to the_ bidding process or for facilitation of award of tender for Mwanza Airport project. In his claim, the plaintiff wished to rely on both exhibits Pl & P2 to show that there was such - - - - contract. In my view, even if exhibit

P 1 & p-2 or -any----- _ _ of them were to be construed as evidence to show the existence of such contract, this Court would not have been the right forum for resolving the dispute between them. This is because under both exhibit P 1 & P2, it is provided that in case of any dispute or difference, the parties should settle it through amicable negotiations, failure to which the dispute or difference should be referred to Arbitration under the Rules of Arbitration of the International Chamber of 13 Commerce in force at the time of signing the Agreement. Furthermore, the plaintiff wished to rely on the E - mail i.e exhibit P3 written by David Zhang, ---------- the Deputy General Manager of th-e--deferida.n~c company------------ to show that he is entitled to his claim of Tshs 2,063, 982,910/= being 2% of the contract price of 103, 199,145, 545/= for Mwanza Airort project. The plaintiff claims to have been employed through E- mail by the aforesaid Manager to facilitate the award of tender NO AE- 027/2010- 2011 / Mwanza /W / 10 to the defendant on WIN- WIN terms. 14 In my view, the said E- mail exhibit P 3 did not amount to an agreement between the plai~tiff and the defendant to offer facilitation services with respect to bidding processes of the aforesaid tender. In fact, I ______ 9-_g~_~e with the defendant that exhibit P3 is a mere personal communication with no

binding___effects-.- -This-------------- disposes of the first issue which I answer in the negative. On the second issue, the Court is called upon to determine as to whether or not there were any services which were rendered to the defendant by the plaintiff worthy of his claim of over two billion Tshs shillings. As already pointed out, P.W. 1 David Noble testified that following the E- mail exhibit P 3 by David Zhang who is the defendant's Deputy General 15 Manager, he facilitated the defendant for preparation of tender documents with respect to Mwanza Airport project. He said in doing so, he went to Tanzania Airport Authority to inquire about discrepancies in -.the.tender documents and that he was informed that - -- - - he had not made the site visit and ·obtained --a------------- certificate of attendance. That upon so being informed, he made efforts to solicit from consultant and client to remove the requirement of visiting the site and obtaining a certificate of attendance so that the defendant can bid and that his efforts were successful and that he was given the necessary documents for the defendant to enter the bid. That as a result of his efforts and convincing explanations of Mwanza Airport land scape, the defendant was given --------- - 16 the tender and that he proposed the price quotation of USD 58,000,000/= for Mwanza Airport project which was accepted by the

Tender Board. }\gain, as already pointed out D.W.lGuo xiangke testified that the plaintiff ___did ·--riotning------------- including site visit regarding the Mwanza Airport up grading project and that he is not entitled to get any payment from the defendant company. As already pointed out, the defendant's stand is that the tender for upgrading of Mwanza Airport was awarded to them not because of lobbying or solicitation by plaintiff but . because of its profile and experience in the construction of the National stadium in Dar es Salaam and the Zanzibar Airport . . _ _ _ __ l 17 Mr. Kwilukirwa and Mr. Ngasa for the defendant submitted that the public procurement Act, 2004 which provides for procurement procedure does not allow lobbying for tender issued by the Tender Board and evaluated by the Evaluation committee and that- the said Board and committee are required under S. 38 of the Act to act independently. Mr. Kumwenda for the plaintiff submitted that the plaintiff provided services as testified by P.W. 1 and P.W.2 in their respective testimonies and that had it not been for P.W. 1 's solicitation, the defendant's bid would have been disqualified for non -attendance by defendant to a pre - bid meeting in Mwanza. -------- -- - - -- - -- - 18 In my judgment, I agree with Mr. Kwilukirwa and Mr. Ngasa for the defendant that under the procurement Act, 2004 lobbying or solicitation

for tenders is not required under the Act as it entails corrup:t practices. I agree with the defendant that winning of the tender for upgrading Mw~nza--Airp-ort ___ _ project was not due to the plaintiff's influence but due to its profile of its construction works of the National Stadium in Dar es Salaam and the Zanzibar Airport. At any rate, following the E- mail exhibit P3 no binding agreement between the plaintiff and the defendant was struck for preparation of tender documents and for proposing the price quotation for the Mwanza Airport project. This disposes of the second issue which I answer in the negative. 19 On the third issue, the Court is asked to determine as to what reliefs are the parties entitled to. As the first and second issues have collapsed or answered in the negative, the plaintiff is not entitled to any relief. For these reasons, I dismiss this suit with costs. ~ A.Shangwa

JUDGE 2016 in the presence of the plaintiff and Mr. Kwilukirwa for the defendant. ~ A.Shangwa

JUDGE 18/2/2016