john jacob construction ltd vs aduco international 2002 tzhc 2031 8 february 2002

IN THE HIGH COURT OF TANZANIA

AT P A R BS S ALAAM CIVIL CASE NO. 412 OF 2000 JOHN JACOB CONSTRUCTION LTD- - - - APPLICANT Versus ADUCO INTERNATTOMAT ^xr ^ Axj jjV" -----------DEFENDANT

JUDGMENT T e issue before this court is that of payment to the plaintiff of interest and costs as the principal sun. has een settled by the defendant as parties failed to agree under The mediation process on whether the defendant ought to pay interest and costs to the plaintiff it was agreed that the matter go for trial. The following issues were framed for the courts determination :~ .ihether the settlement entered on 1/3/2001 between the plaintiff and the defendant was u n a l and conclusive including the claim on interest and costs. If the above is answered in the negative, what reliefs are the parties entitled to* The plaintiff Jacob Kalifedha Mchenya testified that he owns a construction company called John Jacobs Construction Company Limited. He stated that the defendant who were partSof *h the K°ng0We ' Kl™ k0n± POad Co n t r a c t e d part of he work to them. That they signed agreement to do . ® & i , & r k E - The signed agreement was admitted for identixication only a.s *IDI* Die plaintiff added that according to that agreement paymen was to be made in fourparts advance payment, then w ! f f aftSr tW° WeekS’ then the Second 3taSe Payment as to bemade m the 4th week and final payment in the M relentl°n free “ relation to payments (2) (3) and 4 above. Cont....#/2 - 2: - r.e stated in evidence that they performed their par of tne contract but payments were net made as

per the schedule. He stated that the defendant did not m y em on time as the Ministry of works did not pay the defendant on time that payment to them was not subject o the Ministry of works paying the Defendant. lie addea that at first the Defendant c l a w e d f have overpaid him by TShs five million but upon further reconciliation of figures the Defendant acknowledged that ey were supposed to pay the plaintiff TSh 12 million. He StatSd that ^cording to him the correct amount- was* TSh. 76,412,225 inclusive of VAT That- * ■ x v a i , m a t as no co mpr o m i s e was reached the plaintiff decided to file the suit in court t ^ ThS plalntlff aclded that soon after they sat with the defendant and ended up in signing of the agreement IDI where the due balance was TSh. 36,676,307/30 inclusive of VAT. " Th® P o n t i f f testified that on the Defendant had ot paid m m on the due date of I/I/99 , then he is now ° aiming interest for the delay. He stated that Exh. PI whicn he signed on l/j/2000 covered the final measurement as agreed as agreed by the Ministry of works; that was purely to determine the quantities of the works executed to enable payment to be made, and that it hed nothing t. do with claim on in'tppp^'f" <-*-+-.-*4- ■* o-il? interest. He stated that he was claiming interest at 31% over the amount and costs. After the plaintiff closed his evidence Nr, Mafuru advocating for

the defendants prayed to the court to adjourn the matter so that he contacts his client before Z Z : " l0n °f ^ Court obriged and fisdd the matter on ai/ll/ 0 1 at 2 p m . Come ^ ^ ^ . Mafuru was not where to be see. Mr. Ukwonga for the Pli m t iff prayed to the Court to enter judgment on the evidence given as he had no other whtness to call. The issue is whether the plaintiff is entilled to recover interest on the delayed amount he finally received from the Defendant. received Cont. . . , / 3 - 3 - Unfortunately the Court was claimed from hearing e Defendants case. According to the evidence adduced the 2 7 / R A Q « r en^ (annexture A te the Pla“ t) entered into on '’ he Plaintiff stated in evidence that the e endant failed t. pay them on time because the Ministry of works was not paying the Defendant on time. If this f-n oan the plaintiff really blame the Defendant for the delay? I think not. Further, it is clear from the dence „nat settlement on the payment could not be made ao the paities could not agree on what amount was due. There were a series of calculations „f the aKounts clallKd and a T f i f 1T ^ th£‘ DBfendant- In 5h0rt °o agreed the X T n t H H “ 9i 22/1/2000 ’ In 0^ this how can , ° aira interest on an unasentained amount? Further ever If thp n i a - i m of , w , , i . alm f0r lnter^ t was granted. the rate of 31A certainly on the high side, think this rat- would apply where the plaintiff claims to have borrowed the sum ® Ilnanolne Institute and where therefore he Plaintiff was also paying interest. ^ In sum therefore I am not inclined to grant interest as claimed by the BlMnti-f-f -i^ Plaintiff. P o n t i f f tut would award costs to the M :) .■ o A| / }/"\ !, [L, r, [/ A . G. Bubeshi,

JUDGE 8 /2 /0 2 . Delivered before Parties.