20190809 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM· CIVIL CASE NO. 240 OF 2014 JOYCE MICHAEL JENGELA MWAKYOSI. ..................... PLAINTIFF

VERSUS KIWIRA COAL AND POWER LTD .......................... 1 sT DEFENDANT TREASURY REGISTRAR ......................_._ ............... 2No DEFENDANT

PERMANENT SECRETARY MINISTRY OF ENERGY & MINERALS .................... 3Ro DEFENDANT THE ATTORNEY GENERAL ................ ·............,.... ~.4TH DEFENDANT ·

JUDGMENT E.B.LUVANDA, J. . f Joyce Michael Jengela Mwakyosi the plaintiff here1n is claiming again Kiwira Coal and Power Limited (first defendant), Treasury Registrar ., (second defendant), Permanent Secretary Ministry of Energy and Minerals (third defendant) and . the Attorney General) (fourth defendant) i~ for a sum of Tshs 119,591,600/= principal amount with cpmpound · interest of 25%, interest on decretal sum plus general damages and costs. f /1 It is alleged by the plaintiff that in between 2006 and 2008 ..she \ supplied and delivered · spares including conveyor belt, steel wire lpg, bearings etc to consumer- Ms Kiwira Coal Mines and"- the later issued LPO No.01549,01602,01550,02110, 02115, 01601, and 02116 exhibi.t ,Pl \_,,.. ,_ - 1 collectively. That Ms Kiwira Coal Mines confirmed acknowledgment of a luggage in a letter exhibit P2. That after delivery of stuffs she lodged a claim, where she was advised to lodge it to the Ministry of Energy and Minerals as there was change of leadership at Kiwira Coal Mines. At the Ministry of Energy and Mineral she was told to resume back to Kiwira Coal Mines, who told her (via a letter exhibit P3) her to lodge a claim to the Treasurar. That the Treasurar was not cooperative, hence wrote _a demand letter ( exhibit P4) To the Ministry of Energy and Minerals who respondent via a letter ID1. Hence this suit. On defence, the defendants

stated that they partly acknowledge that vide Local Purchase Order (LPO's) numbers 01549, 01550, 01601,01602, 01603, 02110,02115 and 02116 the plaintiff did supply various equipment's and supplies to the first defendant. That the procedure require the tenderer upon supplying commodities ought to , -./ issue delivery note then the receiver issue receiving note, thereafter ·issue LPO. That all claims of staff and tenderers were verified and aludited by the independent auditor MS KPF, where claims which had ·~ genuine documentation were paid and those claim which had no docJmentation including the plaintiff, the tenderers who rendered '; services were asked to submit documentation. That the plaintiff's claim ', i had I no genuine and authentic documentation as such the plaintiff ., wa$ notified via a letter ID-D1, to submit documentation for her claim • ... -.,;.. ..... 4 , . to prove auth_~nticity of those claims, which she failed. 2 At a trial, Mr Malima David learned Advocate appeared for the plaintiff and Ms Natasha Shao learned State Attorney and later Ms Janeth Makondoo learned Senior State Attorney appeared for the defendants. Issue framed, were as follows: first, whether the plaintiff is entitled to the claimed sum of Tsh 119,591,600/= being payment in respect of equipment and . other facilities supplied to the first defendant; secondly, whether the plaintiff has a claim

against the second and third defendants; third, to what relief(s) are the parties entitled. Regarding the first issue, The plaintiff stated that she supplied and delivered spares including conveyor belt, steel wire log, bearings to Kiwira Coal Mines, as evidenced by Local Purchasing Orders (LPO) exhibit Pl collectively. The first defendant confirmed and acknowledge to had been supplied with the spares in a letter exhibit P2. There is no evidence of payment of the same. The defendant kept dribbling on the plaintiffs claim. At . defence, DWl alleged that the plaintiffs claim was not processed or paid for want of genuine, authentic documentation and supporting documents including purchase order, invoice and delivery note and receiving note as per findings of an independent auditor Ms KPF. Nevertheless, a story by DWl fall short as the Court was not appraised with a copy of the said findings and recommendation by the said Ms KPF (independent auditor). More important, this fact was not even pleaded in the amended written statement of defence. 3 As much the first defendant had confirmed and acknowledged receiving spares from the plaintiff via a letter exhibits P2, the plaintiff's cannot be let to go bare empt handed. In the said letter dated 9.6.2014 exhibit P2, the first defendant authored at the third paragraph, I quote, " Tunakiri na kuthibitisha kuwa tulitoa

LPO Na.01549,0155~01601/01602/0160~0211~0215 and 02116 kwa M/S Joyce Michael Mwakyosi na M/s Joyce Micheal Jengela kwa tarehe mbalimbali na pia tunakiri kupokea vipuri/ vifaa mbalimbali kwa "Good Reived Note" GRN Na: 12772 na 14093 katika tarehe mbalimbali. // In a letter dated 13.6.2014 exhibit P3, Tanpower Resources Company Limited (successor of the first defendant), wrote at the third and fourth paragraphs, I quote, "We also admit that we offered L.P.O No. 0211~ 02110/01550/0154.9 and received the equipment~ valued USO 6i176.00 and Tsh 16,910/000 vide GRN No. 12772 and 14093 dated 21st July 2006 and 1.Jh February 2008 respectively. We also admit that up to date we have not paid you for the said sale. The reason for our failure to pay you is attributed to the fact that there has been reshuffle in the 4 administration of the mine. Our company handed over the mine to the government As for now the mine is owned by the government Indeed in the amended written statement of defence, the defendants acknowledged a fact that the plaintiff did supply to the first defendant various equipment's and supplies vide Local Purchases Order (LPO's) No. 01549, 0155,01601,01602, 01603, 02110,02115 and 02116 As such an argument by DWl, that the plaintiff's claim was not paid, as the later did not heed to a call to submit genuine documentation for authentication of her claim, are baseless and

unmerited. Save for Local Purchase Order (LPO's) No. 01549, 01550, 01602, 01603, 01601 for the year 2004, part of exhibit Pl collectively, which PWl said she was paid and asked the court not to consider them, as cross examined by the learned State Attorney. In that spirit they are taken as settled. An LPO No. 02110 dated 17.0.2007 for sum of USO 52,500.00, LPO No. 02115 dated 21.1.2008 for a sum of Tsh 11,500,000/= and LPO No. 02116 dated 19.2.2008 a sum of Tshs 10,867,500/= part of exhibit Pl collectively, which were also mentioned in a letter exhibit P3, being unpaid , the same are ruled to have been proved on the balance that a sum of money appearing therein was not paid. Therefore the first issue is answered in the affirmative to the extent that the plaintiff is entitled to a sum of USD 52, 500.00 and Tsh 22, 367, 500/=. 5 ,, With reference to the second issue which goes thus, whether the plaintiff has a claim against the second and third defendants. DWl put that this mines before it _was restored to the government it was owned by an investor. In a letter exhibit P3 quoted above, the author wrote that now the mine is owned by the .government. DWl did not dispute that the second and third defendant are responsible to make good to the plaintiff's claim. I therefore rule that the second and third defendant are jointly liable to the plaintiff's claim. Having premised as above, the plaintiff is entitled to a sum of USD 52,500.00 and Tsh 22.367.500/=. The said sum will attract interest at 10% from a date of delivery of a judgment to a date of final settlement. The rest claim including that of compounding interest and general damage are dismissed for want of foundation and proof. A suit is gr~nted. I make no order as to costs.

JUDGE 9.8.2019 6 11 ., . ,. 20.8.2019 Coram : Hon. Massam ,DR t For the Plaintiff 1s -1-· Absent 2nd .. st For the defendant: 1 ]- Miss Janeth Makondoo 2nd Cc: Yasin Order: Judgment delivered today in the absence of the plaintiff and presence of Ms Janeth Makondoo Senior State Attorney for , the defendants. R.B.MASSAM DR 20.8.2019 7 ; . ' f ··- \ ) L'