20200531 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM. CIVIL CASE No. 216 OF 2016 MIRAGE LITE LTD ••••••••••••••••••••••••••••••••••••••••••••••••.•••• PLAINTIFF Versus \ AIRTEL TANZANIA LTD .......................................... DEFENDANT

JUDGMENT 31 st March, - ]th May, 2020 J. A. DE-MELLO l; It is a claim of United States Dollars Two Hundred and Seventy two Thousands, Seven Hundred and, Sixty Five (USD $.272,765.00) being the amount due as per the Variation Certificate No. 1 to 13, that, the Plaintiff has brought against the Defendant. The Defendant are a reputable mobile network provider who contracted the Plaintiff to carry out electrical works for MSR Data Room center at the then, Zain/ Airtel building along Bagamoyo Road, at an agreed total costs of United States Dollars Nine Hundred and Forty Eight Thousands, Four Hundred and Twenty Eight and Four cents (USD $ 948,428.04) evidenced by Purchase Order Number 000022927 dated the 31 st October, 2008. It is also evident that, Plaintiff carried out th~ work under supervision of M/S Kentoplan Ltd. as an Electrical Con ulting Engineers, the ones who allegedly made variations for an additio a extra work which Plaintiff 1 ' ' carried out on the inter-connecting rooms. Following completion of that, extra work, the Plaintiff raised variation certificates which were approved by the consulting Electrical Engineer, who in-turn forwarded them to the Defendant for payment. However, the Defendant managed to pay USD $ 844,873.19 only, leaving a balance of USD $ 272,765.00, now subject of this claim. Worth noting here is that, the suit was a pending backlog since 2016

and, it is until 2020 that, it attracted a full hearing with the Plaintiff in care of Counsel Rutabingwa Advocates whereas· the Defendant fended by Counsel Miriam Bachuba from IMMA Advocates The following issues were framed; I. Whether M/S Kentoplan Ltd. was an Agent of the Defendant? II. Whether the variations carried out by Plaintiff were lawful sanctioned by the Defendant as per the governing procedures? III. What are the Reliefs Parties entitled to? The Plaintiff summoned three witnesses namely Mehangra Gurdeep Singh, Adonis Kamala, and, Davinder Singh, while the Defendant lined up only one, named, Gladdy Fimbari, the legal officer of the Defendant, On the 7 th of February, 2019 before Hon. Luvanda l; and, in the presence of Rutabingwa Advocate and, Salah Advocate, a Settlement was registered to be attempted, as the Court was prayed to adjourn the matter with a view of finalizing it. was submitted by Counsel Rutabingwa and, which Counsel Sal needed it to be the right 2 position. However, on 28 th May, 2019 the anticipated Settlement was record not forthcoming. On the 16th of May, 2019 the matter assumed its course as hearing and in full gear commenced backed up by seven (7) exhibits other than the said witnesses as hereunder; 1. Purchase Order No. 000022927 dated the 31 st October 2008 - exhibit Pl 2. Variation No. 1 Extra Works for Zain MSR Tanzania - exhibit P3 3. Valuation No. 4 Final Account Electrical Works for Zain Tanzania - exhibit P3 4. Final Account for Electrical Works for Zain Tanzania dated the 15th November 2010 - exhibit P4 from Kentoplan Ltd. To Airtel (T) Ltd.

5. Extract of a Special Resolution of an Extraordinary Meeting of Board of Directors held on the 6 th January, 2016 for legal action against Airtel as well as instructing Rutabingwa & Co. Advocates for suing - exhibit PS 6. Demand of Retention of Money for Electrical Works dated 19th March 2012 - exhibit P6 7. Letter in response to the Demand Notice dated the 5 th I letter dated the 7 th May 2012 February 2012 annexed wi~th admitting the claim and com · ment to pay the amount due - 7 th May, 2012 - exhibit P7 3 ' ' PWl Gurdeep Mehangra, tendered exhibits Pl, Pl, P3, P4, PS, & P6, all in the endevour to show cause why the remaining balance USO$ 270,000.000 is still owing and pending from the Defendant. That, nothing out of scope was done and, without the Defendants knowledge in whose supervision was Kenton Plan their electrical engineer. Two demand notes were issued one for retention while the other for variations much as no written agreement was in place but based on what Kentoplan was recommending. Be it as it may and, notwithstanding the gap, payments by the Defendant were directed to the Plaintiff indicating recognition. Adones Kamala, PW2, a registered quantity surveyor gave an account of how the stakeholders in similar works operate in case of an assignment/project. It is a circle involving various players with each attracting a separate expertise, from Employer,

Consultant to Contractors. He alluded as to how jobs can be variated in case of need and always agreed between the contractor and consultant for onward approval by the Employer. In this instant case he observed there was agreement between the Employer and the Defendant too, of which the Consultant Kentoplan, was fully aware and in charge. Last on line was PW3 Davinder a director for Kenton Plan corroborated engaged for design a mobile switch gear for the Defendants in which the Plaintiff secured the job. He highlighted all the duties undertaken by him to include changes and, variations if any, in course of projects. His assessment confirmed the accomplishment of the same which was approved by issuing a final certificate for payment. He even and on cross examination, testified Airtel to be aware and, approv d, after their Project Manager, engineers and, Architects deliberated in a meeti The neglect, failure of refusal does not 4 augur well, he observed much as he never followed up whether the Plaintiff was paid or not. It is thus the Plaintiff's prayers, for grant of reliefs sought, considering the fact that, the company has been denied its gainful use of the said money and pray for the Commercial Bank interest of 20% on the said sum of USO$ 272,765.00 from November, 2010 to the date of Judgment, compounded annually. PW2 corroborated on PWl's but went to explain how all that

happened. It is hence their prayers that the suit is allowed, prayers granted with costs As observed above, one (1) witnesses appeared for the Defendant who as evidenced from their Written Statement of Defense vehemently denied the allegations. In essence, she categorically stated that, no variation whatsoever other than the substantive job that was discussed and, agreed between the Plaintiff and, the Defendant. Moreover, M/S Kentoplan Limited, whom they contracted with, was not an agent of Defendant and, hence not party to the agreement. If at all, it is purchase order number 0000022927 that, was agreed as they denied liability if any, for variation as alleged by the Plaintiff, she stated. Glady Fimbali the Legal Counsel for the Defendant since August 2014, is evidently relying on what she found from record, not being around the time this matter was in action, she admitted. Hers was basically avoiding liability based on absence of "Principal and Agent" between the two. Exhibit P2 she alludes did not receive any blessings from the Defendant hence not sanctioned, not even the alleged minutes for the meeting claiming the presence of Project Manager and Engineers from Airtel. In the;absence of emails, purchase order or standard terms and, conditions, exhi~ & D1 renders the claim 5 void, of which up to this moment the Plaintiff has failed to share. In total, DW1 testified, the

reliefs sought and, unsupported to be vague and unmerited. Section 110 (1) & (2) of Cap. 6 is applicable for failing proof that, Civil law demands, on such allegations. To start with the first issue, and, in as far as exhibit P4, there is no dispute that, Kentoplan Ltd. acted as a Consultant in contractual works implemented by Plaintiff for Defendants. Exhibit P4 shows Final account for electrical works for Zain Tanzania in respect of Purchase Order No. 0022927 which is exhibit P1 as evidenced by PW3. It is even glaring clear that, relationship created an Agent and, Principal expressly or implied and, or ratification by the Principal of the Agent's act, done on his behalf. All that is required to create an agency relationship is the manifestation of assent by both sides, which Defendant's act manifested that existence of fiduciary relation. In this instant case Kentoplan Ltd, was an Agent of the Defendant. This then answers the first issue in affirmative. Coming to the second issue, and, based on the above, the Plaintiff acting in that capacity, went ahead to conduct variations that Kentoplan Ltd. an agent of the Defendant found to be significant to allow the switch gear to turn on. The said variations were confirmed though email and, were carried on as per exhibit P2 which is variation for extra work for Zain and, exhibit P3 final accounts electrical work for Zain Tanzania. I

heard and, have gone through the evidence submitted by both Parties and would wish to state that, the subject of the contract was implemented within the premises of the Defendant without evidenc brought about, disputing that the said works had not been done. Since it i established that, Kentoplan Ltd. acted 6 as an Agent of the Defendant, all the advice and variations proposed were done on behalf or for the Defendant to simply deny having full knowledge backed up with all the necessary documents such as exhibit P2 directed to Kentoplan Ltd for communication to the Defendant. PW3 told the Court that, his duty was to verify the correctness of variations and, its implication financially prior to submissions to the Defendant. He further said that, the variations were known to all Zain/Airtel team. It is also clear that, the performance of the contract was done on agreed standards which the Defendant failed to addressed, reasons which I find enough evidence to satisfy the findings that Defendant did authorized variation as advised by his agent. It is obvious that, the Plaintiff had performed his responsibility of which the Defendant has not denied under the contract but, failed to discharge his part, which then gives rise to liabilities accruing and, owing to the Plaintiff as reflected in the Reliefs sought. In fact and, on record there was an attempt to Settle let alone the letter

acknowledging the debt and promise to pay admitted as ( exhibit P7). One would wonder and; if not a party to, then why all these correspondences. Section 73 of the Law of Contract Cap. 345 is certain on Compensation and, Damages, considering failure to respect the contract by the Defendant. This will afford the injured rather suffering party, to settle for his rights. In the case of Kibwana & Another vs. Jumbe (1990-1994) 1 EA 223 it was held; "The Court in granting damages will determine an amdi' nt which will give the injured party reparation for the wrongful ac nd for all the direct and unnatural consequence of the wrongful" 7 This being special damage and, which is evident in as far as exhibit justifies an award to the exact amount of Principal sum of USD $ 272,765.00, interests at the Commercial rate of 20% from November, 2010 to the date of Judgment, Interests on the Decretal sum at rate of 12% as well as costs of this suit. It is sad that efforts to settle the matter amicably one which the Court recorded on the 7 th of February, 2019 amidst glaring commitment in the Defendants letter dated the 7 th of May 2012, Ref; Rutabingwa & Co. Advocates, collectively marked exhibit P7 quite compelling and would wish to import the second paragraph; "Please be informed that Airtel is working on your demand. We will therefore be able to complete internal process and pay the amount due

within the next thirty (30) days". Going by the heading of the same letter and again I borrow, reads; "RE: DEMAND OF RETENTION MONEY FOR ELECTRICAL WORKS BY M/S MIRAGE LITE LIMITED". It is with no flicker of doubt that the defendant recognized and acknowledged the electrical works done by the Plaintiff and had at one point committed to offset the retention money due. The suit is merited and allowed with costs.

JUDGE 07/05/2020 8