MAN NCHEYE PA CO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL CASE NO. 8 OF 2023 MAN - NCHEYE - PA - CO.LTD .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KIGOMA DISTRICT COUNCIL .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J, Before 2013 Uvinza District Council was part of Kigoma district. It was however split and formed into a new district independent of Kigoma District in July 2013. When the two districts separated, some of the properties that were held by the parent district were shared. This is what happened to Sunuka Secondary school which was under construction before the split and was taken by Uvinza thereafter. It was not clear between the two district councils on who was to pay the construction costs upon claims by the plaintiff who alleged was contracted by the 1st defendant to construct the hotel block, install solar system and supply furniture under contract No. LDA/043/2010/2011/KDC/W/2, in the sum of TZS 210,824,000.00. Upon completion of the project, the contract sum was paid except the balance of TZS 77,260,709.00 part of it the sum of TZS 7,029,646.00 being for retention. In between 2012 and 2014 the plaintiff claimed for the balance from the 1st defendant but was referred to the 2nddefendant. Likewise, the 2nd defendant referred him back to the 1st defendant. This back-and-forth movements irritated the plaintiff who filed this case praying for the judgement and decree against the defendant for the following orders. 1. That, the defendants jointly and or severally after ascertainment of liability, be ordered to onto the plaintiff TZS 77,260,709.00 being the remaining balance of the contractual price in accordance with paragraph 5 and 7 plaint. 2. That, the defendants jointly and or severally be ordered to pay TZS ten million (10,000,000) or any other sum as may be dully assessed by the Honourable Court as general damages. 3. That, the defendants jointly and or severally be ordered payment of TZS ten million (10,000,000/=) as damages for perpetual breach of the contract and Five million (5,000,000/=.) as punitive damages for lawlessness and irresponsibility defying a public body. Page. 1 4. Payment of interests on the decreed amount at Bank rates since 2012 to the date of judgment and subsequently to full execution. 5. Payment of interests on the decreed amount at court rates from the date of judgment to the date of full execution. 6. Costs of this suit. 7. Any other reliefs deemed just and fit by the Court. At the hearing, the plaintiff was represented by Mr. Ignatius Kagashe, learned advocate, while the defendants were under services of Mr. George Kalenda learned Senior State Attorney. Two issues were set by this court for determination. 1. Whether the defendants jointly and severally are liable to pay the amount of money claimed by the plaintiff. 2. To what reliefs are the parties entitled to. Each party had one witness. For the plaintiff, testified one Benjamin Adam Charukula, Pw1, and the defence was by Engineer Tecla Paschal Lyubha(Dw1) Pw1 is among the directors of the plaintiff, he testified, that in 2011 the company entered into a contract with 1st defendant for construction of a hostel, refectory, installation of the solar system and fix furniture at Sunuka secondary school located at Ilagala, now in Uvinza district. The project according to Pw1 was worth TZS 210,000,000.00. The contractual period was 4 months, March to July. Upon completion of the project, the plaintiff was paid all her dues except the sum of TZS. 70,000,000.00 as project balance and TZS 7,000,000.00 for retention. He said, upon competition of the work, the Kigoma district was divided, a new district, Uvinza, was formed of which the project was established. The plaintiff’s claim, he testified were not settled because not the 1st defendant or the 2nd defendant that was willing to pay as shown in exhibits P1 collectively. Dw1, an engineer, testified for the defendants that project was not completed in time. It was delayed for 1,004 days and therefore in the terms of the contract, it was terminated automatically, and the plaintiff ought to pay liquidated damages to the defendant calculated at 0.1% per diem, which for the whole defect liability period, it is the sum of TZS 21,166,729.00 To determine the first issue, one looks at the evidence and pleadings. It is a standing principle of law that not only parties that are bound by their pleadings but also the court. To start with, the plaintiff in my view pleaded under paragraphs 8, 9 and 10 establishing the bases of the claims. The respective paragraphs state as shown hereunder; 8. That, despite the fact that the suit contract was executed between the plaintiff and the 1st Defendant, during its performance by the plaintiff, the later was divided into two, establishing a new district council of Uvinza herein the 2nd Defendant where Sunuka Secondary School is now located. 9. That, between 2012 and 2014 the plaintiff demanded from the 1st Defendant, the remaining balance of Tshs. 77,260,709/= partly vindicated by two letters annexed herewith, which were latter responded to by the 1st Defendant in November 2014 vide a letter reference No. KDC/E1/164/28 directing the plaintiff to claim the Page. 2 contractual remaining balance from the 2nd Defendant who was also copied with the said letter. 10. That, in response to the 1st Defendant’s directive in the letter referred to above, (Nov. 2014), the 2nd Defendant responded to the said letter copying it to the plaintiff dated 23/12/2014 in which the latter categorically denied liability and indebtedness expounding inter alia that the contract price from which the claim is based, never formed part of handle overs between the two councils, and thus boldly required the 1st Defendant to pay the claimed balance to the plaintiff. Attached herewith marked A1 are the plaintiff’s two letters and the 1st and 2nd Defendants letter aforesaid to form part of this plaint. Under paragraph one on the other hand, the amended written statement of defence noted the terms, of inter alia, paragraphs 8. It is clear to me that paragraph shows there was a contract between the plaintiff and the first defendant in respect of constructing a hostel, installing solar system and fixing furniture their in. But there is no dispute however that the plaintiff did the work and received part payment. It is not shown anywhere in the defence case that the contract was terminated by either party. The defendants if they terminated the contract as testified by Dw1, it was her duty to prove how and when it was terminated. It was testified by Dw1 that failure to complete the project in time, attracted an automatic termination of the contract. This assertion is I think baseless, since it is not backed by evidence. The contract document perhaps had such terms, but it was not tendered by the defence to prove the existence of the same. It is ironic that the attempt by the plaintiff to tender the same was blocked by the defendants. In so doing, if I may be pardoned for saying so, the defence was shooting itself on the foot or as they say, it was as good as washing her linen in public. It is therefore clear to me that the contract was not terminated and if it was, there is no evidence proving so. Still, the plaintiff tendered exhibits P1 and P2. The two letters were collectively admitted as P1. The same was an exchange between the 1st and 2nd defendant on who has the liability to pay the balance. Taking into consideration of exhibit P1, a letter from 1st defendant, it threw liability to the 2nd defendant. It was in the following terms; “Halmashauri hizi ziligawana bakaa ya fedha zilizobaki kwa mwaka wa fedha 2012/2013 ili kila mradi utekelezwe au malipo yake yafanyike katika Halmashauri husika”. While in exhibit P1, the other letter, paid for scores as well, in that, it was not her duty. The wording was as follows; “Kwa barua hii nashauri suala la mkandarasi huyu juu ya mradi tajwa liendelee kushughulikiwa na Halmashauri yako. Fedha za mradi huu hazipo kwenye orodha ya miradi ambayo fedha zake zilihamishiwa halmashauri mpya ya Uvinza” It goes without saying from the two letters that there is no dispute, the two defendants did not directly deny liability but rather shifted the burden of paying the balance to one another. Having clearly found that the plaintiff proved her case. It is clear to me that the contract was performed, it was not terminated. Therefore, the following is clear; Page. 3 First, the contract was entered between the 1stdefendant and the plaintiff. Second, during partition of district council, there school subject of the projected went to the 2nd defendant. Third, there is no clear evidence as to who between the two defendants took liability of the balance in the project and other debts if any. It is therefore fine that in the absence of the evidence proving the responsible person between the two. The 1st and 2nd defendants are jointly liable for the claim. The first issue is therefore affirmatively determined in the favour of the plaintiff. The plaintiff pleaded the amount that was not paid. The defence through Dw1 said, under cross-examination that before termination of the contract, the amount paid was TZS 153,000,000.00 and therefore the balance was TZS 57,000,000.00. However, there is no evidence to prove the sum paid was 57,000,000. This failure to so prove how much was paid, did not excuse the plaintiff from calling sufficient evidence to show the remaining balance. This was not. Her letters P1 were collectively admitted but did not show the amount claimed. It goes without saying therefore that the plaintiff did not prove her claim as per plaint. But because the defence has admitted only 57,000,000.00 as the balance. I hold as follows in determining the last issue; 1. That, the defendants jointly to pay TZS 57,000,000.00 being the remaining balance of the project 2. That, the defendants jointly and or severally be ordered to pay TZS 10,000,000.00 as general damages 3. To pay interest on the decreed amount at 7% from date of judgement to final satisfaction of the decree. 4. Costs of the case to follow the event Dated at KIGOMA this 13th of December 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 4