MARCO TUARIRA CASE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 106 OF 2022 MARCO TUARIRA MJEMA PLAINTIFF VERSUS MIC TANZANIA LIMITED DEFENDANT JUDGEMENT 24^0ct&22'^ Nov, 2024 NGUNYALE, J. The plaintiff MARCO TUARIRA MJEMA filed the plaint against the defendant MIC TANZANIA LIMITED praying for one, payment of the outstanding sum of 300,000,000/= two, compensation at the rate not below TZS 200,000,000/= three, costs of this suit four, interest on one and two above at such rate and for such period of time as this court may deem fit to grant five, any such other or further reliefs as this court may deem appropriate. The facts as depicted from the plaint dated 24^^ August 2022 state that on 10"^ August 2009 the plaintiff entered into a freelance agreement with the defendant to perform some duties for the said defendant which r. included selling starting kits, scratch cards, EVDs, E PIN, doing retailer's audit, reports and all other duties related to the cellular business defined by the defendant and the same was renewed for a further period. The plaintiff worked as a team leader of 37 freelancers whose duties included recruiting subscribers to the defendant network, in average the plaintiffs' team recruited about 5,000 subscribers monthly. It was agreed that the plaintiff would be entitled to 50% commission of the amount paid to his team which is born out of the total amount paid by the respective subscribers introduced by his team throughout the period of the subsistence of the agreement from 2009 to 2016 after the same was terminated by the defendant. The plaintiff at several times required proof of such account from the defendant however the defendant has throughout been reluctant to release the same to the plaintiff. Hence the plaintiff was left with no choice other than following up on the same from TCRA who in turn informed the plaintiff that the same cannot be revealed to him unless so ordered by the court. The statement account of such introduced subscribers can be accessed by the defendant. Upon termination of the contract, the defendant underpaid the plaintiff contrary to the agreed 50 % commission the fact which aggrieved the plaintiff and he started to make follow up on the balance from the defendant but the defendant has never heed to the same, hence the present suit. The suit was called for final pretrial conference on 25^ April 2023 and the following issues were framed; 1. Whether it was agreed in the freelancer agreement that the plaintiff would be entitled to 50% commission ofthe amount paid in his team. 2. If the first issue is answered in the affirmative^ whether the defendant under paid the plaintiff. 3. To what reliefs are the parties entitled to. On 08^^ October 2024 when the matter came for hearing the plaintiff appeared represented by Ms. Lucy Nambua learned Counsel whilst the defendant was enjoying the service of Ms. Rosemary Maajar and Nuru Mwaluka both learned Counsels. PWl Marco Tuarira Mjema (49) testified that he engaged to work with the defendant in 2009 in their office located at Ilala Dar es Salaam region. He tendered a freelance agreement which was admitted as an exhibits PI collectively. According to PWl the agreement was explaining his duties and payments. He was working as a freelancer thus he was being paid depending on the amount of work done. He was dealing with selling sim card to the customers of Tigo network. He was working as team leader supervising youths who formed the team. There was payment of 10% in the team and the plaintiff as a team leader was being paid 50% of the amount paid to the team. The agreement was that once they sell the line in a month the company compute how much those line has used as airtime for the company and in that amount the team is paid 10% and also for him as a team leader was being paid 50% of the amount paid to the team. The business period was six months and they were paid each month. The commission is paid for only six months of the existence of the line bought by the customer and after expiry of six months no more payment is made in favour of such line. The agreement with the defendant was terminated around 2016 and at the time when the agreement was terminated he was under paid. The termination letter was admitted as exhibit No. PE4. His efforts to claim for payment ended in vain thus he decided to file the present case to claim the outstanding amount which was not paid. He testified that he had no exhibits on the amount he was not paid because exhibits were not given to him by TCRA. He estimated the amount which was not paid was 300,000,000/= plus compensation in the tune of 200,000,000/= making a grant total of 500,000,000/=. In defence DWl Nurdin Lugembe (30) testified to the effect that the plaintiff was their freelancer and his mode of payment was as stipulated in exhibit No. PI which is the freelancer agreement. The team leader is paid according to the way he meets the key performance indicators. Ail team leaders including the plaintiff were being paid sufficiently. No team leader of freelancer who has a claim against them. Having heard the evidence for PWl Marco Tuarira Mjema (49) and DWl Nurdin Lugembe (30) and their respective exhibits, I proceed resolving the dispute starting with the first issue whether it was agreed in the freelancer agreement that the plaintiff would be entitled to 50% commission of the amount paid in his team. This issue will not consume the precious time of the court or the parties because from the evidence and exhibits tendered there Is no dispute about the existence of the freelancer agreement and that the plaintiff as the team leader was entitled to 50% commission of the amount paid in his team. Exhibits No. PI is the freelancer agreement between the plaintiff and the defendant and among the contents of the agreement is the amount of commission payable to the team leader. After determining the first issue, what remain contested is about payment of the same that is to say whether the plaintiff was underpaid in the freelancer agreement. In determining this second issue therefore, I prefer to be guided by the principles underlying the standard of proving a civil case which is on the preponderance of probability as stipulated by Section 3 of the Evidence Act Cap 6 R. E 2019. Section 110 (1) of the same Act provides that: - "Whoever desires any court to givejudgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist" The way the law stands, the said burden iies with the person who would like to prove a fact in dispute. This is the general requirement reflected under Section 110 and 111 of the Evidence Act. The same has been inspired in a number of judicial considered decisions including the case of Paulina Samson Ndawavya versus Theresia Thomas Madaha, Civil Appeal No. 53 of 2017 in which it was observed: - "It is trite law and indeed elementary that he who alleges has the burden ofproofas per Section 110 ofthe Evidence Act... It is equally elementary that since the dispute was in civil case, the standard of proof was on balance of probabilities which simple means that the court will sustain such evidence which is more credible than the other" The parties to any form of the agreement are bound to abide to the terms of the agreement discharging rights and obligations. Each party is bound to perform contractual obligations. The case of Ronald Kasibante versus Shell Uganda Ltd, HCCS No. 542 of 2006, in which the breach of contract was defined to mean; - ''The breaking of the obligation which a contract imposes which confers a right ofaction for damages on the injured party'' In the instant case the, PWl testified that the defendant did not comply to the freelancer agreement because he did not pay him adequately as an individual freelancer and as a team leader. He was being paid depending on the amount of work done in sells of the defendant products and the income from airtime spend by the customers after buying the sim cards of the defendant. In his evidence, PWl said that he was terminated in 2016 but at the time of termination he was not adequately paid. He admitted that he had no exhibits which would establish the amount of work done and the amount of money he deserved to be paid by the defendant. He expected the court to order the TCRA to provide those exhibits. He just estimated the amount which was underpaid by the defendant to be 300,000,000/= and compensation of 200,000,000/=. In adjudication, in order to make a finding and arrive at a proper and fair conclusion the basic approach is to evaluate the evidence on record by applying the law to a factual scenario. In the present case and with due respect to the plaintiff it is apparent that the plaintiff has not discharged his duty of proving the allegations he has levelled against the defendant. The principle noted in the case of Paulina Samson Ndawavya (supra) has not been discharged to the balance of probability. In his evidence, PWl said that he was to be paid depending with the amount of work done in a specific duration of time. Unfortunately, he could not establish amount of work and the amount of money he was deserving. There is no conclusive evidence from the PWl showing that the respondent underpaid him. The plaintiff came with the bare assertions which are not sufficient to prove that the defendant underpaid him. There is no concrete evidence which refute the arguments of the defendant through DWl that the plaintiff was adequately paid. The plaintiff complained that he expected the court to give him an order compelling TCRA to give him the necessary exhibits to prove his case. That was a wrong approach on the side of the plaintiff to expect the court at the mid of the trial to give him an order to go around to look for evidence. His argument that he had no exhibits to prove the amount of money he was under paid is a good example that he came to court with bare assertions expecting to get a relief in a court of law. The plaintiff has failed to prove by a preponderance of probability per Section 3 (2) (b) of Evidence Act that he was underpaid by the defendant. The second issue is therefore, answered in the negative. The last issue is about reliefs, in his plaint he prayed for outstanding sum of 300,000,000/= which is like specific damages, general damages in the tune of 200,000,000/=, interest and litigation costs. The rule for specific damages is a bit strictly. The same must be pleaded and strictly proved. The standard of proof in specific damages is higher. See the case of Reliance Insurance Company (T) LTD & 2 Others versus Festo Mgomapayo, Civil Appeal No. 23 of 2019. Looking to the evidence of PWl he has not proved specific damages. In his own words he said that he had no exhibits establishing such amount claimed. The claim of 300,000,000/= was not substantiated through evidence adduce during trial. It cannot be awarded just impliedly. General damages may alternatively be awarded where the specific damages were not proved but, in this case, even general damages were not established to all allow the court to exercise it discretionary powers. Therefore, the payment of 200,000,000/= as compensation cannot be granted. Generally, the plaintiff did not prove his case on the balance of probability as required in civil cases. In the final result, judgment is entered in favour of the defendant. The plaint is dismissed with costs. Order accordingly. nd Dated at Dar es Salaam this 22"° day of November^ 2024. o -y N > D. P. Wgunyale^ JUDGE Judgment delivered this 22"^ day of November, 2024 in presence of the plaintiff in person Nuru Mwaluka and Rose Maajar both learned advocates for the defendant. o o > D. P. Ngunyale JUDGE 10