mr erick john mmari vs ms herkin builders ltd 2022 tzhccomd 12 18 february 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF THE

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.138 OF 2019 MR ERICK JOHN MMARI.................................. PLAINTIFF

VERSUS M/S HERKIN BUILDERS LTD 'DEFENDANT Last Order: 20/12/2021 Judgment: 18/02/2022 JUDGEMENT^ NAN GE LA, J:. a \\ K a Ordinarily, in most construction and engineering contracts, as it may be evidenced by this case, contractors are required to complete all contracted works within a pre-agreed and fixed completion date, failure of a which they may become liable to the employer. ^Ir^hisjnstant suit, the Plaintiff is claiming from the Defendant a total of TZS 398,842,534.03 as specific damages. The claims result from failure on the part of the Defendant to complete contracted works within pre­ agreed completion date. Besides, the Plaintiff claims from the Defendant, payment of general damages, as well as costs of this suit. Page 1 of 63 To fully appreciate the gist of such claims, I will set out the facts of this case shortly hereafter. It all started on or about the 6th day of December, 2010, when the Plaintiff and the Defendant concluded a house construction agreement. Under the contract, the Defendant agreed to construct for the Plaintiff, a one storey residential building, with three bedrooms, bathrooms, lounge, dining, kitchen, store, etc, on Plot No. 17, Block 1, Mtoni Kijichi Area, Temel<e^Municipality, Dar-Es-Salaam. The costs of the wbrks^wer^>for an agreed contract sum of TZS 324,196, 436/=< Although the cgntract\wa's^sjgned on 2010, construction works werejo commence

14 days later upon receipt of instructions toCcommence. As such, the contracted woH<s^comrh^n^a on the 6th day of February 2011, and'tfieXsamexwere to be completed in a year's time^lT^b^hsj^xrneaning that, completion and site handover date was'the 5th day of February 2012. works on the day when the Defendant got instructions to commence, the project got held up due to a number of unforeseen events. Consequently, the parties entered into a mutual agreement and varied the earlier agreement by extending the construction completion period to December 2013. Page 2 of 63 It is worth noting, however, that, up to July 2013, already the Plaintiff had paid the Defendant a total sum of TZS 277,000,000/=. That fact, notwithstanding, up to December 2013 the construction works remained incomplete. On or about January, 2014, the parties agreed mutually to further extend the contract's completion period to 14th November 2014 (as comgjqtion date) and the 15th day of November 2014 was appointed as^a day when the Defendant was supposed^^h^n^oyer the completed works to the Plaintiff. However, up/to the 15th day of November, 2014,zthe^conTfacted works had not been completed and^the naqding^over could not take Defendant had./submitted to the Plaintiff a soft copy of an Intedm_~V.aluation'-arid,a Claim No. 4, claiming for a sum of TZS 147,2^4,625.94. Notably, however, shortly before^srec^ing that

Claim No.4, the Plaintiff had inspected the site and found it to be at a standstill. He noticed that, some works were carried out below acceptable standards of construction and, up to 18th October 2015, nothing was done and, hence, no progress was registered. Due to the delayed completion and other factors which affected the project, the parties herein were drawn Page 3 of 63 into back and forth arguments and correspondences. In the end, their disharmony about the project ended up later being submitted, by the Plaintiff, to the Contractors Registration Board (CRB) as a formal complaint. Besides, the same complaints drew in other construction quality assurance bodies such the Engineers Registration Board (ERB) and the Architects and Quantity Surveyors Registration Board (AQSRBWall trying to mediate between the parties or come out with a Agreed way forward as the works ^at tpeS^site -remained uncompleted. To be precise, J'he^tfonftiffc c6mplaint was formally submitted to.th^CRBs^n td^July 2016. Even so, after a long protracted efjffrt to^diffuse the dispute, the respective bodies?, led^-by the' CRB, failed to resolve the parties' standoff. Tney.afterwards advised that the matter H___ vy be subraitted^o^a^Court of law. On 28th August 2019, therefore, Defendant handed back the construction site to the Pla.itrtiffjand, on 2nd October 2019, the Plaintiff terminated the contract. It

is from such a background that, on the 20th day of November, 2019, the Plaintiff filed this suit claiming for a sum of TZS 398,942,534.03 as specific damages from the Defendant. In particular, the Plaintiff claims to have suffered damages, both specific and general, for breach of Page 4 of 63 contract, loss in the form of lost opportunity to derive rental income from the proposed residential house, from consultants, December 2014all atofa _,whpm\he paid a total (net of TZS oftaxes) rrate of ,US$ 1,500.00 y per month which makes a total of US$ 87,000.00 or TZS 200,100,000 up to September 2019. Besides, the Plaintiff claims to have incurred costs of making unscheduled travelling {safaris) from Cairo/Nairobi/Khartoum to Dar-Es-Salaamf to attend the various meetings and site visits, accommodation ih\Dar- Es-Salaam as well as other exoendrebres^totalling US$ /I \ 3,805.00 or TZS 8,750,989.00. Furthermore, the Plaintiff claims to have4en?§gecl^eryiees of various WSD, however, the Defendant raised a preliminary point of law, to the effect that, the suit is hopelessly time barred. This Court heard both parties and on the 11th May 2020,1 overruled the objection. Unfortunately, the parties could not resolve their dispute during mediation session and during the final pre­ Page 5 of 63 trial conference the parties filed issues which the Court adopted as drawn and agreed issues. The issues

agreed upon were as follows: (i) Whether the Defendant breached the Contract for Construction of residential house on Plot No, 17, Block 1, at Mtoni Kujichi, Dar-es- Salaam. (II) If the above issue is in the affirmative, whether the Plaintiff contributed to the alleged breach" by the Defendant. (iii) Whether the Plaintiff suffered; damages as prayecSdjje to^fhe Defendant'^bfeacfrof-contract/b (iv) To whcftwdief are the parties entitled^ At the hearing of^Ais xase Mr Elvaison Maro, zA \\ x learned advocate^appeared jfor the Plaintiff while Mr Alfons NachipianguK and Omar Msemo, learned advocates, represented the Defendant. ( \J\Jn the course of hearing of this case, the Plaintiff calledvfoyr^itnesses to testify and tendered in Court a total of 39 Exhibits in proof of his case while the Defendant called one witness and tendered in Court eight (8) Exhibits. At the closure of the hearing session, the learned counsels for the parties did as well pray to file closing submissions. Page 6 of 63 I will, therefore, summarise the witnesses' testimonies and, in the course of my analysis of the evidence, take into account the closing submissions as well as the pleadings of each part. In his testimony in chief, Pw-1, (Mr Erick John Mmari) testified that, currently he is working as a Logistic Officer at the United Nations World Food Programme , Sudan Mission. A Pw-1 stated that, his

claims^againsK the Defendant is for payment of specific ^amagesin^the sum of TZS 398,842,534.03 by way^of cos^of>cbmpleting construction works on zhis^cbnstruction^site, loss of earnings and costs^of^engaging^arious consultants, transport costs, stationary^nd'^lijed costs. He stated^furthq^t^t, as the Plaintiff, he also claims fo^ge^eral\damages for breach of contract, persoaal^stfessT'and^humiliation, and mental torture, loss « 'xN xs, of expectation/vharassment and over engagement in \\ \\ attemptstoarpicably resolve the current dispute. Pw-1 testified that, on 6th December 2010 he entered into a house construction contract with the Defendant wherein TZS 324,196,436/= were the agreed consideration or contract price. He tendered in Court a copy of the said contract which was admitted as Exh.Pl. He testified that, the house to be constructed was to be erected on Plot No.17, Block 1, Mtoni Kijichi Page 7 of 63 Area, Temeke Municipality, Dar-es-Salaam. He told this Court that, he procured a building permit, which he tendered in Court and was admitted as Exh.PZ. According to Pw-1, the Defendant took possession of the construction site and received initial payments on the 06thday of February 2011 and, in terms of Clause 3 of Exh.Pl, the construction works were to begin Fourteen days upon receipt of instructions to commence the works and the entire project was to be

completed''vyithin twelve (12) months, i.e., by 5th of FebruarynZOlZ Pw-1 stated, however\tna^'')While the construction of the foundatkifiSvaKiontfjoing, there was received a MunicipaI^StopsO^der'^ccording to Pw-1, the Stop Order was issuedlbecause the contractor had not displayed ^any ^slg^jboapd and stickers from the relevant regulatory boards. ^=Jft^lx^ted-ti3at, on 30th April 2012 he was called upon and engaged a structural engineer and a Quantity Surveyo^QS) to supervise the works. The QS engaged was M/S Masterpiece Consult and M/s Nimeta Consult (T) Ltd. A copy of the engagement contracts were tendered and received as Exh.P3 and Exh.P4 respectively. It was a further testimony of Pw-1 that, as a result of the Stop Order and other unforeseen subsequent events, the parties agreed mutually to extend the life span of the construction contract from the 5th day of Page 8 of 63 February 2012 to December 2013. Pw-1 testified, however, that, up to December 2013 the Defendant had not finished the works, hence, on or about January 2014, the parties varied the completion dates to 15th November 2014, a day appointed for a handover ceremony. Pw-1 testified further that, pursuant to the parties' joint discussions, the Defendant prepared a schedule of the outstanding works and Jjqrielines for the completion and issued the same to the Plaintiff. As^such the parties agreed to the

extensra^^pnod^and the Defendant retained the works' site and continued to execute the works. The seheSHI^f^orks^was tendered and admitted into ewdeijfe as^ixmRS. According to Pw- 1, during the entire construction period he paid the yt \\ Defendant various sumsat ^various stages, a total of which amdmted tOsSTZS 277,587,112.40. The same X' V' were,paid as'TollbwsLz brr2nd anci■$, Feb.2011 = USD 62,500 (TZS 93,875,000/=) \\ V (Bank Transfer to Defendants Account) (ii)<0RJtJ^8th of October 2011 = USD 25,000 (TZS 42,000,000/=) (Bank Transfer) (iii) On 12th November 2012 = TZS 12,000,000 (Cash payment) (iv) 17th July 2013 = USD 75,400,000 (TZS 120,618,530.40) (Bank transfer to the Defendant's A/c). TOTAL PAID AMOUNT........ TZS 277, 567,112,40. Pw-1 tendered in Court various receipts evidencing such payments and the same were received as Page 9 of 63 Exh.P6A, and 2 copies of Telegraphic Transfers (TT) as Exh.P6B. It was Pw-l's testimony that, up to 15th day of November 2014 the Defendant was yet to complete most of the construction works on site, a fact which drew the parties to long-drawn arguments and exchange of correspondences concerning the progress of the project which was stagnant. Pw-1 tendered JW Court e-mail correspondences between the parties and tne^same\were admitted as Exh.P.7. , It was a further testimony^of Pw-1 that, on the 10th day of October

201<5,^tife~::Defehda'nf sent, to the Plaintiff, an Interim ValuatiorMpr Claim No.4 in respect of /f "" xK z the works carried out on the project site, claiming to be A \\ "Sh * paid TZS 147,284)625.94 ’/ The Valuation Claim No.4 and a dispatch book, were tendered and admitted as Exh.RS^ar^E&pa/7 Cp^1\ stated, however, that, before the said claim was received1) he had personally inspected the site and found it to be with no operational activities while some executed works were below standards, including noticeable leakages and obvious alterations from the agreed bills of quantity (BoQ). Pw-1 testified, in response to the claim No.4, that, he advised the Defendant to complete the construction works, rectify all noticeable anomalies to the acceptable Page 10 of 63 construction standards and submit a final bill to be settled within two (2) weeks of submission and handing over of the construction site and the completed works. A notice to produce and the copy of the letter sent to the Defendant were tendered in Court and admitted as Exh.PIO and Exh.Pll respectively. Pw-1 testified that, despite such a call for completion and handing over of the works and the site, up to 18th October 2015 nothing was dope and no progress was made on the constructio^site, a facowhich made Pw-1 to lodge a compl^t\^ithXthe^o/7/'/acft'/'s Registration Foarr/(CRB)^o^l3^Ju^2()T6. A notice to produce and a

letteooLcomplai noserved upon the CRB was tendered as evidenge'tand'ycollectively admitted as It/wasAa further testimony by Pw-1 that, subsequenctoffl^lodgement of the complaint, a meeting was^convened on^the 20th day of July 2016 at the CRB offices^attencfed by the Plaintiff, the Defendant and CRB Staff. He stated that, it was agreed in that meeting that, an independent consultant be sought at both parties' shared costs to assess the progress of the contracted works and advise the way forward. Tendered in Court, was a tripartite handwritten agreement arising from the meeting and the same was admitted as Exh.P.13, Page 11 of 63 Pw-1 told the Court further, that, subsequent to the issuance of Exh.P13, the Plaintiff consulted the Defendant's Managing Director, the late Eng. S.I Kishimbo on the way forward regarding Exh.P13, but the managing director of the Defendant was non-cooperative. He stated that, upon consulting the CRB, he was advised to consult the AQSRB (the Architects and Quantity Surveyors Registration Board) for guidance: It was Pw-l's further testimony that^pn the 21st day of July 2016, the Plaintiff consuited>the AQSRB on how to access and engage registered and'’ qualified Architects and QuantityzSu^V^^and^^e’was given a pamphlet with a list of«p_racticing AMk/Js at a cost of TZS 30,000. He tenaered/tin^Court a letter with Ref.AQ15/PO/A.M3^^Sd 26th July 2016 and

a receipt No^41968 which were collectively admitted into evidence asxExh.R14.' r 'Sx \\ \\ Pw-1\ told this Court also that, with recommendations of the AQSRB, the Plaintiff picked QS Mr Wasiwasi Kezilahabi who works with M/S LM Construction Management Ltd. He stated that, on 28th July 2016, the Plaintiff, the QS and the Defendant's Managing Director (the Late Mr Kishimbo) visited the site and an inspection and initial observations were made leading to an initial report. Page 12 of 63 the works, including carrying out laboratory tests and, that, a report to that effect was submitted on the 28th day of March 2017. However, according to Pw-l's testimony, the services of the consultant were procured at the Plaintiff's costs as the Defendant refused to share the costs. Pw-1 stated that, M/S LM Construction Management Ltd carried out the assessment of the works' progress and financial appraisal and delivered a report to the "CRB." Pw-1 tendered in Court a copy of a letter by the CRB dated 30th November 2016, attesting contents of the handwritten tripartite agreement (Exh.P.13) arising from^the meeting held at the CRB's offices and, the, sam^was admitted as Exh.P15. Furthermore, Pw-l^Tehdered^in JCourt a letter dated 2nd December.2016/addressed by the Plaintiff to the CRB expressing\his acceptance with the consultant's findings. The 'same^wa^^^iitted as Exh.P16. Pw-1 told thisXourt\as

well that, at the instance of the CRB and^th^^la^^ff^desire to have a technical and engineering\tructural investigation (TE&SI) be done, M/S \\ M z Pw-1 tendered in Court a contract of engagement of M/s Msambaza Design Consult which was admitted as Exh.P.17, He further told this Court that, at the recommendations of the CRB and, after a careful revision Page 13 of 63 of the two investigation reports by the consultants, the two reports were consolidated to produce a consolidated technical and financial Report, which was submitted to the Board on 27th day of October 2017. A copy of a letter submitting the Report to CRB was tendered and admitted as Exh.P18. It was a further testimony of Pw-1 that, following the submission of the consolidated technical and financial report, there were series of meetings at the'CRB's offices, Jr including a meeting held on the, 27tvA’pril 2018/which was attended by the Plaintiff, the^Defenoant^Managing Director, the two consultants\and2:the Plaintiff's legal advisors M/S KRN. Minutes ofahe meeting were recorded by the Consultant i\from,$/SxMsambaza, wherein the \\ agreement was'thavthe M/Sj/Msambaza's consultant was to carry otftsite meeting and prepared minutes. However, he toJd?.thiswpuitShat, later the Defendant refused to signChose^iinufes’. \\ M x \PW-lj;told this Court as well, that, on 27th April 2018, the Plaintiff wrote to the CRB briefing

them on what transpired in the site meeting and proposed the way forward. He stated that, on 14th May 2018, the CRB wrote to the Defendant asking for the latter's feedback regarding what had been done in resolving the dispute. A copy of the letter was tendered and admitted as Exh.P.19. Page 14 of 63 Furthermore, Pw-1 tendered a letter written by CRB, dated 1st March 2019, inviting the Defendant to a stakeholders' meeting on 8th March 2019, at 10:30hrs and which directed the Defendant's Managing Director to appear in person, and explain as to why the Defendant refused to sign the site meeting minutes. He told this Court that, the meeting was rescheduled to 19th March 2019 and, a letter by the CRB was admitted as Exh.P20. Pw-1 further testified that, followingXhe meeting held on 19th March 2019, on the 3rd d^Ola^IOi^ the Plaintiff received a letter advising that tneZCRB was unable to mediate the partiei'^d-they^flduld refer their dispute to the Court.Jde tendered\the said letter which / y was admitted as Exh.P21t Pw>l further tendered in A \\ Z Court, various recapts^nd^tickets of expenses incurred and thesefwbre collectively admitted as Exh.P.22. He also tendered-fih'Gburt receipts for payments made to the n ^XX consuitantsswhich/Were collectively admitted as Exh.P23. ^Rw-ljldld also tender in Court a loan agreement advanced to the Plaintiff by the UN Federal Credit Union and

the same was admitted as Exh.P24. He did also tender in Court a letter he delivered to the Defendant on 2nd October 2019 about the termination of the contract as he CRB had not been able to arbitrate the parties. The letter was admitted as Exh.P25. Page 15 of 63 Besides, Pw-1 did tender in Court a site register book which was admitted as Exh.P26. He also tendered two letters written to the AQSRB and these were admitted as Exh.P27, and Exh.P28. In addition; the Court received e-mail correspondences between the parties concerning various variations which were proposed either by the Defendant or by the Plaintiff and mutually agreed/Upon, "costed" and paid for, and these were admitted as\Exh.P29 as well as Interim payment Certificate admitted as ExIlP30. Pw-1 tendered as well two lettersxdatea 12t5>April 2013 and 1st May 2012 about/the^'ftiutuallyxagreed variations and which were admitted^as'Exh.P?!. Further still,lyPw-lZsubmitted a trail of e-mails A \\ * \\ z dated from 24 x^bq^^2pi4 to 4th November 2014 regarding<gifferent samples of materials used during the execution of>works,_as well as emails dated 18th June 2015, to 17\ July 2015. The same were admitted as \\ \\ z Exh.P.32 and Exh.P33. Finally, he asked the Court to grant the reliefs sought in the Plaint. On cross-examination, Pw-1 told the Court that, M/s Masterpiece was a project manager whose job was to supervise the

construction works. He admitted that, there was an extension of the contract which was unilaterally signed by the Defendant and, has been admitted as Exh.P5 and was part of the original agreement. Page 16 of 63 Concerning the Defendant's involvement in the preparation of the consultants' reports, Pw-1 stated that, the Defendant did attend on the 1st day of the consultants' evaluation/assessment and, that, without the Defendant's involvement the report would not have been complete. He further admitted that, Exh.P17 did not have the signature of the Defendant on it and stated that, the reason for that missing signature was the fact that the Defendant refused to take part in tnex^xerq^e of engaging the consultants. Pw-1 told this Court that, ab^ut 90% of his thoughts and concentration went-toXhe project and this was stressful or tortured him. He^told the Court that, Exh.P13 does notmavezan^as^ect of costs but he did explain that, the^issue-of cost was between the Plaintiff and the^efendantxwho should have engaged the consultant. sHe admitted that, there was no evidence f Xx showing that, both'engaged them. He also admitted that, M/S bl^Construction Ltd was appointed by the Plaintiff alone since the Defendant was uncooperative. Upon re-examination, Pw-1 told this Court that, Exh.Pl had a schedule of works which was an addendum to Exh.Pl. He also told this Court that, the hand over

date for the contracted works was the 15th day of November 2014. He stated that, Exh.P5 was not signed by the Defendant because the Defendant did not Page 17 of 63 take any interest to engage the consultant. He stated and admitted that, nowhereasdid Exh.P34. the Defendant raise any query about the Consultant's report. The second witness for the Plaintiff was Engineer Samson W. Msambaza, a holder of Msc. Degree in Structural Engineering from the Military School of Civil Engineering in Bulgaria, which he obtained since 1981. He testified as Pw-2 and, as a registered engineer, he practices his profession under a professionayirm ^styled M/S S.W. Msambaza Design Consult. Pw-2, told this CourHfoa^fiis fiqrrwes engaged by the Plaintiff on the 6^^^f:Jar]Ugiy/2017 to carry out a technical structuraj^engi^eenn^investigation over a structure standing pn PloJ^o^?/Mtoni Kijichi, Temeke Municipality, Dartes-Salaam. ]He told this Court that, he did signxCrormaR^consultancy agreement with the Plaintiff,^and^^a^op^he 19th day of January 2017, his firm\wrote\to the Defendant requesting for copies of engineeripgdrawings (structural, electrical and plumbing) as well as architectural drawings. The letter was tendered He further testified that, on the 19th day of January 2017, a meeting was convened at the Defendant's office whereupon it was agreed that, a field visit, for purposes of taking of

samples and testing, was to be carried out on the 23rd January 2017, and, that, such a consensus was Page 18 of 63 confirmed by his firm's letter to the Defendant, dated 23rd January 2017. The letter referred was tendered and admitted as Exh.P35. Pw-2 stated further that, having received requested documents and embarked on the assignment, it was observed that the engineering drawings did not match with the architectural design used for construction. Noting the anomaly, Pw-2 stated thaf^a letter was written to the Defendant requesting the origiqalapproved drawings, the BoQ documents'^^LEn^ineering Architectural drawings for the compound w^lf A letter written by Pw-2's firm^^tendereckand admitted as Exh.P36. Pw-2 stated\that,zthe investigators embarked on X \\ X the assignment\witn\full cooperation of the Defendant \\ Xs/ who offered ^personnel who took part in the field work, as well~as me^project^ontractor's representative one Mr ft \\ Kumbula, kukanix He stated that, at the end of the assignmqnka report was produced with findings that, the building required major and minor rectifications to make it safer for habitation. He tendered in Court, the Investigation Report (IR) which was admitted as Exh.P.37. Pw-2 stated further that, some of the findings enumerated in the Report could be easily and visibly noted by naked eyes while some of the client's (Plaintiff's) Page 19 of

63 complaints were verified through laboratory tests conducted by the Tanzania Bureau of Standards (TBS), whose tests reports form part of the Exh.P37. He also told this Court that, in his professional opinion, the Exh.P37 proved most of the Plaintiff's complaints. Pw-2 told this Court that, at the instance of the CRB, another site meeting was conducted on the 27th day of April 2018 which was attended by Pw-2, the QS (Mr. Kezilahabi), the Defendant's Managin^Directqr, tHtelate Engineer S.I Kishimbo, Mr. Yureudi '^ebugis'aYom the Engineering Registration Board (ERB)a'Architect Mlezi Makuka from AQSRB,iffejuye (from Masterpiece Consult),,Eijg. (Sharles^Mathias (from Nimeta Consult (T) Ltd), (\QS fyir^Lukani Kumbula (from the Defendant's firrm Advocate/ Fatuma Amiri (for the Plaintiff) afTcftfee Plaintiff himself. z-According''t:o^Bw-2, in that site meeting, he was if \\ in-charge and took-the minutes of the inspection meeting. He also-s^atgd that, the aforesaid meeting received the QS's and structural Engineers Reports and the meeting resolved for a way forward detailed on page 4 to 8 of the minutes. He stated, however, that, later, the Defendant's project contractor refused to sign the site meeting findings and assignments of various site works but Pw-2 did personally sign the same. Page 20 of 63 Pw-2 did also state that, sometimes in June 2019, the Plaintiff approached the

consultants and requested for a merged and updated consolidated report as he had resolved to have the dispute brought before a Court of law. That assignment was carried out and Pw-2 stated that, having read it he was satisfied that it presented a balanced and accurate views. On cross-examination, Pw-2 told/the Court that, he was instructed by the Plaintiff as perE)th.P17\and, that, the Defendant did not form^pai^fo.ExhJM^'as the agreement was not with the contractor^the^efendant). He told the Court that, it^Waiws^Nirhet^who prepared the drawing and architecturaKdesigns, together with M/S < y Masterpiece Consult*. Pw^2 alsoj.toid this Court that, he X \\ xi did not evaluate \the percentage of the works accomplished.\When>asked if he was a duly registered engineer, Pw(2 TolcLthe Court that, he was registered witn\ERB ancl, the/he had all relevant practicing licences. @n reexamination, Pw-2 stated that, although it was the Plaintiff who engaged him, the Plaintiff did so through the ERB who appointed him as that is where he is registered as a practicing engineer. He told the Court further that, the Defendant availed to Pw-2 all necessary documents they had requested from the Defendant and, that, Mr Lukani, the Defendant's QS, did take part in the investigation. He further told this Court that, although Page 21 of 63 materials tested by the TBS such as steel bars passed the test,

the problem lied on qualified workmanship and supervision, negligence and quality control. The third witness for the Plaintiff who testified as Pw-3 was QS- Mr. Joseph Mende. He told this Court that, he is a qualified Quantity Surveyor with Bsc. Degree in Building Economics and professionally registered and working with M/S LM Construction Management Ltd. Pw- 3 told this Court further, that, his compan^got involved in the construction project on Plot ^^BIocl^^Mtoni Kijichi, Temeke Municipality, DSNTand^fti^Tie was one of the personnel who partiCipated-inJhe investigation and preparation of professionak^reports^on the quality of works and financialCppraisals i^regard to the adjusted contract sum'^and'currentycosts of completing the outstanding works, extensive rectifications and re-doing of various v\/brks'on>.the site. f l\ He testified'to the Court that, on 27th July 2016, M/S CM<ons£njctlon was engaged by the Plaintiff to carry out an assessment of work in progress on a Construction site, to wit, on Plot No. 17 Block 1, Mtoni Kijichi, Temeke Municipality, DSM, and provide a financial appraisal thereof. Pw-3 also told this Court that, on 28th July 2016, himself, the Plaintiff, one Mr Kezilahabi and the late Eng. S.I Kishimbo (the MD of the Defendant) as well as Engineer Kazi from the CRB, visited the site, carried out Page 22 of 63 inspections made preliminary observations and

delivered a report to the CRB with copies to both the Plaintiff and the Defendant. Pw-3 told the Court that, later, at the guidance of the CRB, the Report was consolidated with an initial Report prepared by M/S Msambaza Design Consult to produce a consolidated Report on the assessment of work progress and financial appraisal. According to him, the consolidated Report was submitted to the CRBjon the 27th October 2017. He also stated that, at tnfe. requestpf the CRB another site meeting was; cohx^ecl^on 27th April 2018 and the attendants ofwitwefe Pw-3,, QS Kezilahabi, the if a xk Defendant's Managing Djcector?>the late Engineer S.I zA V Yl Kishimbo, Mr. YtireudKRwebugisa from the Engineering Registration Board (ERB), Architect Mlezi Makuka from AQSRBz-Arcnitect^G.^Hejuye (from Masterpiece Consult), Eng^CharlesvMathias (from Nimeta Consult (T) Ltd), QS Mr Lukani Kumbula (from the Defendant's firm, Advocate Fatuma Amiri (for the Plaintiff), the Plaintiff himself and Pw-2, who took minutes of the meeting. Furthermore, Pw-3 told this Court that, later in June 2019 an updated report was produced regarding the assessment of the work progress and financial appraisal at the request of the Plaintiff, as the Plaintiff had expressed a desire to go to Court. He tendered the report Page 23 of 63 in Court and the same was admitted as Exh.P38. He told the Court in summary that, the market

value of the works which called for extensive rectification and re-doing of the incomplete works, was at a sum of TZS 165,787,898.53 (VAT Exclusive). Upon being cross-examined by Mr Nachipiangu, Pw-3 told this Court that, his involvement in the matter was through the AQSRB and, that, he wastasked to come up with a consolidated report, taking intoxaccouht the other report furnished by Pw-2, M/S^1sambaza>Gonsult. As such, he told this Court that tnex2nd r^porfwas made after signing an agreemenWitl^therPlaintiff but not the first report which was,dirgctly^ordered,by the AQSRB. Pw-3 stateci furtfier'That, the 2nd Report A \\ m z (Exh.P38) Wcfs^a consolidated report ordered by the Plaintiff and was forbthe Plaintiff who had shown him a ) U. lettercfrom CRB'^tb^the effect that a consolidation was necessary/He said; he was free to prepare it as a report. He toicKthis Court that, while the costs will remain to be those agreed between the parties, updated project costs meant costs which will affect the initial costs. He also stated that, as per the findings, there were both corrective works to be done and works which had not been done at all and which were worth of about TZS 80,642,152.10. Page 24 of 63 On re-examination Pw-3 confirmed to be registered as a Quantity Surveyor (QS) and, that, his registration was in accordance with the AQSRB's requirements. He also stated that, in the

course of the evaluation carried out, he used no other new prices of materials used since the initial price was on the basis of supply and fix. He confirmed also, that, the building was about 74% completed but, that; the requisite corrective'tyvorks would lower those percentages^JHe^^ted^^h,er that, instead of using the agreed "oofincf materials the contractor used his own^p^lhd^fiere^was roof leakage that required an ovephaul of'the entire, roofing work. The last witnesszfor^me>Plaintiff was Pw-4, Mr Issa Sultan Muncleme^a registered Valuer who holds an Advanced<Diplofna from UCLASS since 1979 (before the Coliege'Changed'intO-Ardhi University) and Msc. Degree in I "'X Urban^LandXApppisal from Reading University, UK. He also ^practises his profession with a firm called GimcoAfrika Ltd. In his testimony, Mr Mundeme told this Court that, he is a registered property valuer, registered with the Tanzania Valuer Registration Board (VRB) and owns a professional firm which advises clients on all aspects of real estate, including Land Management, valuation etc. He testified further that, sometimes in the month of Page 25 of 63 March 2021, he was instructed by Maro and Co, Advocates to assist in assessing what would be an acceptable, realistic and provable passing rate of rental (assuming complete) for a proposed residential house on Plot.No.17, Block 1, at Mtoni Mtongani within

Temeke Municipality. According to Pw-4, having visited the property and considered similar properties of the like nature (assuming the structure was completed), Pv^4 arrived at Uponbeing'cross-examined, Pw-4 stated further J''” a finding that, the passing rate wuld\be^betweep'*a that^there^r^v^ripus things which determine what sum of TZS 700,000= and 900,000/=.^le tendered in amount orVental' Court a Report charges would be for arespect on Renta/^Lo^As^^ment'm particular of a property, on Property among them z< Plot.No^l-7' being Blockthel^Mtoni neighbourhood location Kijichi, Temeke of the property, e.g. whether if it is planned or Municipality, DSM,l^which;twasy received in Court as unplanned; accessibility, standard of finishing and Exh.P.39. specifications, amenities provided etc. He told this Court that, ordinarily, any informed owner would not like to rent his or her property at a less comparable rate unless s/he is compelled to by other factors. Page 26 of 63 Pw-4 told the Court further, that, the methodology he used in the course of preparing Exh.P39 was comparative in nature, and involved looking at the existing neighbourhood properties, market research relying on informants (Madalali), use of information from local leaders and use of information from colleagues in the industry as reliable sources of information. He also told this Court that, he used an investigative

approach as if he was a client seeking to rent a house. \\ V Pw-4 did admit to the C^rt^that^yat his engagement, he was informed that there weis/a pending matter in Court and, thaV’the^appraisal was for a proposed litigation as«he^ needed toJcnow what was the assessment for. Hefaenied^howeyer, that, Exh.P39 was 4 \\ Xl ever prepared for^heqjimoses of" cooking the evidencd' in this caseT\\ ^Orrre-examination, Pw-4 reiterated that, the fact thatxhe was^nfo^med what his report could be used for such infojrnation, did not and does not affect his findings regarding the proposed rental value of the property. Briefly, that marked the end of the Plaintiff's case. The Defendant's witness Ms Luisia Kishimbo testified as Dw-1. She told this Court that, she has worked with the Defendant as a project coordinator since 2011 until 2019. Her witness statement was received in Court as her testimony in chief. Dw-1 stated, in her Page 27 of 63 testimony in chief, that, she has been the custodian of all documents at the site. According to her, right from the beginning of the project, the Plaintiff was troublesome and caused lots of challenges which eventually frustrated the project. She told this Court that, the project's registration requirements, which ought to have been done by the client, were left to the Defendant. According to Dw-1, such conduct caused unnecessary delays and led

goyernmentxauthorities to halt the progress of the project for'a whil^She tendered, as evidence in Court, yariSO^st^^orders issued by Temeke Municipality and^these were_admitted as Exh.D- 1. Dw-1 told this Couii^fiKther that, although the contract price wiich was for a sum of TZS 324,196,436 was to be paid onxinstalments, the Plaintiff refused to effect^paymentx^of. TZS 147,284,625.94 upon Defendant's>submission of CIaim.No.4. She tendered in \\ \\ Court'thqClaim Note No.4 which was admitted as Exh.D- 2. Dw-1 testified further that, the Plaintiff was not adhering to established professional standards as he was a sole decision maker even on technical processes like architectural, structural and QS, and made a lot of variations that caused repetition of the works or stoppage while awaiting further instruction from him. She tendered Page 28 of 63 to the Court a letter dated 13th June 2018 as part of her evidential material and the same was admitted as Exh.D- 3. Dw-1 stated, as well, that, when the project was nearing completion in around 2014, the Plaintiff made variations on specification of tiles (porcelain) materials contrary to what was specified in the BoQ in terms of price. She stated that, although the PiajpfTff wanted the same tiles, he opted for those of higher price, hence, on 27th April 2018, it was agreed. thatxthe Plaintiff will A VA/ purchase the same and the

Defendant wilr fix them, although this agreement was^^hohou^dT According to Dwt^., the minutes taken during the 27th April 2018 meeting hacl shc^vn that the Plaintiff will otherwise/"?^, tendered a letter sent to the CRB requesting tfiat^xprrection to the minutes be made. The letter was'admitted as Exh.D-4. She also submitted a NX \\ ' ietterXf^qmttie Defendant to the CRB dated 21 March 2019, explaining why the Defendant refused to sign minutes of a site meeting. The same was admitted as Exh.D-5. Dw-1 stated further that, the Reports produced by the independent consultants were unreliable because the Defendant was not involved in the appointment of the said consultants and, hence, not impartial. She tendered Page 29 of 63 a letter dated 30th August 2017, which had been written by the Defendant to the Plaintiff, explaining that the Defendant was not ready to pay the costs incurred to procure the independent consultants. The respective letter was admitted as Exh.D-6. Regarding the claim that the Plaintiff was frustrating the works, Dw-1 cited, as an example, the incident of failure to purchase the tiles as^agreed on 27th April 2018, and that, on 08th June 2018, mi>Plaintlff had A P issued a directive to stop all works at th&site untiEwhen a A \px/ handing over was done in July 2018. Dw-1 tendered an Vz email to the Court, which^Was'vijritten^ the Plaintiff and copied to the

Defendant*tox'stop alLworks and, this was admitted as Exh.D^. ShefalsoTendered a letter sent to the CRB on OO^March. 2019 which had been admitted earlier aszExfaP-8. X z^dJn cross-examination, Dw-1 told this Court that, shewras farqiliar^/ith Exh.Pl and, that; the late Engineer Kishlm^owa|! her father as well as the Managing Director of the Defendant. She stated that, in construction industry, there is the so-called 'labour only contracts'and ' full contract', and, that, Exh.P-1 fell on both at different times. According to her testimony, initially the contract started as full contract, whereby the contractor was doing all that which was necessary as per the instructions of the Page 30 of 63 Client's consultant, but as the project progressed, things changed. Dw-1 told the Court that, the first scenario is when the Client failed to involve other professionals such as structural and architectural consultants, and, that, the second scenario was after the project had progressed to the stage of fitting (floor) tiles as the Plaintiff chose a different material other than the one in the BoQ, which was different in size and prices. She statedxtteit, at^that juncture, it was agreed that the.Clienb^ilTbu^and the Contractor would offer labour to fix'then on siteT Dw-1 testified furth'elr^l^t^the^flp^tiles materials had to be fixed first tOcallo^otheNyorks to be done, and / . \\ y that,

the related discussions on>the type of tiles took place in 2015/2016^Sh^ tol^ this Court that, the Client brought an invoice to the Defendant. However, she did not tender itxin Court.. She, however, told this Court that, while shexmderstands in construction contracts there \\ W z mightx^eai necessity for variations, nevertheless, variations might not change the nature of the contract, although at times it does. Dw-1 stated further that, this being a privately engaged project, the Client had room to make changes and did so outside the project manager's mandate. She emphasized that, the issue of floor tiles changed the nature of contract from "full-contract" to "labour-only Page 31 of 63 contract". She maintained that, the variation regarding purchase of tiles brought a new agreement. She admitted, however, that, as per Exh.Pl, works were to be initially completed by 13th September 2011 as per the schedule of works. As for the delays, Dw-1 told this Court that, there were architectural and structural drawings which needed to be reconciled and, that, there were also stop orders issued and received by the Defendant, c^p^ledx with several variations of works and late^payments. She further told this Court, while on cross-e^at^hbtion, that, there were other /brcez/T^^ye^^nts)^such as rain season, which madejtie worlds tb^stop, as well as the non-payment of claims .r3ised)>all of which

became A \\ contributing factors^wljiq^delayed the project completion. Even's©, Dw-1 admitted that, the delays occasioned^ayfthe^stop orders (Exh.Dl) were mitigated fl by the extensiorhof the contract and, that, Exh.P5 was \\ \\ z one of^ereylsed schedules of works but, she observed that, it was not the final one. She admitted, therefore, that, it was for the Defendant to deliver the works on 14th day of November 2014, although she also claimed that, there was another work schedule agreed upon beyond 15th November 2014, but she neither tendered it in Court nor did she refer to it in her witness statement. Page 32 of 63 Dw-1 admitted that, in the interest of moving forward, the client had given the contractor his list of activities and the contractor (defendant) was to come up with a schedule of works which would have reflected the new agreement, and, that, the Contractor did send it to the client capturing a new time frame of implementing what was agreed on the 27th April 2018. She told this Court, therefore, that, as for the floor .tiles' issue, the client had agreed to pay for any additional''square\neter and the Defendant was to mobilize labour Dw-1 stated further_on^oM-e^amFnation, that, the Defendant did not sign'the?mihutes of the meeting held on 27th April 2018. because^they were considered misleading as per the lettpr^he^Defendant wrote on 21st March 2019 (Exh.D^4)v

Shejtold this Court that, earlier the Defejidant^^ad a;±aft of the minutes for them to go througfuand'-th'^were'sent as a soft copy. manager. She told the Court that, for the part of the Defendant, the contractor did register the project. However, she stated that, mobilizing the team to the site and having the signboards erected and stamps attached, were the responsibilities of the Client. Page 33 of 63 Dw- 1 stated further that, Exh.Pll was an email addressed to the Defendant but the e-mail does not make reference to the Claim Note No.4 earlier stated above which was for about TZS 147 Million. However, she admitted that, according to Exh.Pll, the Plaintiff was ready to pay in two weeks if some rectifications were made. She stressed that the Defendant did rectify the problems noted as they were minor works/ On re-examination, Dw-1 stated, inter aliakthat, Vx. y statutory requirements would. demand that; the Consultant Engineer and the QS berengaged by'the Client before construction work^^Bin^Becausenhe contractor comes at last after the<whble teamJs mobilized for the works to commence. In snortxhat was the end of the defence case. AS'I^stated herein earlier, the parties agreed to four issues^Nchkiefecl^tOxDe established in this case. As the lawVstandskfheburden of proving any allegation rests on the partywhp substantially asserts the affirmative of the issue. Sections 110 to 111 of the Evidence Act are applicable to that view. See also the cases of The Registered Trustees of Joy in the Harvest vs. Hamza K. Kasungura, Civil Appeal No. 149 of 2017 and the case of Manager, NBC Tarime vs. Enock M. Chacha [1993] TLR.

228. The principle in civil cases, however, is that, the standard of Page 34 of 63 proof required is generally proof on the balance of probabilities. See the cases of Silayo vs. CRDB (1996) Ltd [2002] 1 EA 288 (CAT). Having said all that, can it be said that the Plaintiff in this case has successfully discharged her duty to prove the case to the required standards? To respond to that question, one has to consider the facts in the pleadings and the issues alongside the evidencejeered for and against, in the light of the existing Jaw. I wjl[ startywith the first issue which was in relation to:'?' Whether the Defendant oreached’the ,\ X Contract for Constructions ofx residential hpuse^on Plot No.17, Block 1,/at Mtoni. KujichlJ'Dar-es- Salaam. zX Before I delve iht<>the.,depths of this issue, I find it apposite^to comment^ on some few points which ema^natedxfron^heZpieadings and which, as correctly submitted byvthe'learned counsel for the Plaintiff, would \\ 1 have shortened the lengthy proceedings, had the Defendant out rightly admitted them in her WSD. To start with, it is clear, in paragraph 8 and 9 of the Plaint, that, the Plaintiff had pleaded that, due to a number of unforeseen events, the parties mutually agreed to extend the completion period to December 2013 and later to 15th November 2014. In paragraph 4 of Page 35 of 63 the WSD the Defendant disputed such a fact putting

the Plaintiff to a strict proof. However, during cross-examination, Dw-1 admitted, that, there were such mutually agreed extensions regarding the period when the works were to be completed. Secondly, on paragraph 12 of the Plaint, there were also pleadings regarding receipt of Claim/No.4 valued at TZS 147,284,625.94, and the Plaintiff'^readiness to honour it in two weeks on condition tnat>certaimobserved A defects on the works were rectified. In her/WSD, the £ Defendant merely tookjiOte^bf'tfie^amount regarding Claim No.4, but denied-’all other assertions. < y During the full^hearipg^of tlje case, however, Dw-1 admitted tho'sexfacts^ncl^ding a letter by the Plaintiff dated 18/V6Stober2015, which was received in Court as Exh.Pll. The saiddetter, which was addressed to the ( Xs x“z Defendant/doutlined the defects and called upon the Defendaqtto) rectify them and submit a final bill which the Plaintiff was willing to settle it within two weeks. Thirdly, on paragraph 14 of the Plaint, the Plaintiff averred that on 20th day of July 2016, parties had a meeting at the CRB's office and, it was agreed they should engage an independent consultant to assess the works at the site. The Defendant disputed those facts in paragraph 10 of her WSD but did at the same time admit Page 36 of 63 that appointment of an independent consultant was to be done mutually. At the hearing, however, Dw-1 did

not dispute Exh.P-13, a handwritten note confirming that the parties had mutually agreed to that approach. Paragraph 15,19 and 20 of the Plaintiff's averments in the Plaint were also disputed by paragraphs 11 and 13 of the WSD respectively, but during cross-examination, Dw-1 admitted the contents disdosedxSin those paragraphs, including the fact tra^the Defendant cooperated with the consultanf\M/S\Msambaza and furnished to him documehte^quSsted in Exh.P34 to Defepdant knowsxvepy well that a particular fact needs notlbe disputedjyhat should be clearly stated in the WSD insteacl^^f^puting it for the sake of just disputing that fact and later admit it at a later stage. Doing so does not serve the purpose stated under Order VIII Rules 3 and 5 of the Civil Procedure Code, Cap.33 R.E 2019, of requiring the defendant to make specific denials. In essence, those provisions are meant to compel the Defendant to specify the matters which he intends to disprove and disclose the matters upon which he relies to Page 37 of 63 support his denial, thereby limiting the issues and avoiding unnecessary delays and surprises. Having said so, let us revert to the pertinent discussion in response to the first issue. As it may be observed, Exh.Pl is a construction contract. Construction contracts are equally governed by the same principles that govern contracts under the law of contract. As a matter of

fact, when a client and a contractor executes a construction contract, the two may, like any other transaction, fell apart and, due to various Zl X Z factors such as delay in finishing the works assignment which operates K _ as setbacks _to the original timetable agreed upon by the parties, poor workmanship contrary to specifications etc, a disputes may arise from that contract. It is worth noting, however, that, not all delays in '"xx n_ construction works may constitute a breach of a -r\ construction contract. The truth remains that, some vX XX ' construction delays may or may not constitute a breach of the contract. If they do, those will be the non- excusable delays and if they do not, e.g., those associated with acts of God, those will be excusable delays. From the context of this case, and, taking into account the modality of implementation of project; it seems to me that Exh.Pl was in the somewhat nature of Page 38 of 63 a turnkey-based kind of a contract, where the contractor procures or supply the materials, carry out the construction works within a specified completion date and hand over the completed building ready for use. As I look at the clauses making Exh.Pl, I see not, in any way, any escalation clause. Generally, an escalation clause in a construction contract will provide for increases in the contract price under certain specified circumstances, e.g., as the

cost of selected commodities (cement, fuel, steel bars) or inflation. From the look of things, therefore, Exh.Pl, was a fixed price, i.e., not subject to escalation, but a lump sum contract, whereby, the payments of the agreed sums, as per clauses 2 and 5 (a), were based on an upfront payment for the value of works of the first three (3) months, and the rest being paid on a 'quarterly-basis lump sums' in proportion to the value of the completed works. ^Frpmthe evidence of Pw-1, up to July 2013 the Plaintiff had paid the Defendant a total sum of TZS 277,587,112.40/=, as evidenced by Exh.P.6A and Exh.P.6B. This was equal to 85.62% of the whole contract sum (or only less by about TZS 46,609,233.6 of the entire contracted sum). However, by the time when assessment of the work progress and financial appraisal were done in the Page 39 of 63 year 2018/2019, as per Exh.P.38 and Exh.P.39, only 74% of the works were completed and, this percentage, according to Pw-3, was subject to a further reduction, given the observed major and minor defects which needed to be attended before the building could become From" tfie\ pleadings, it is an undisputed fact that, habitable. the ^DeferidafffStook From the foregoing, possession one glaring of the portrayed pictures relevant constructlwsite^pn in the pleadings and 6supported th Februaryby2011. Likewise, since the testimonies the of Pw- 1, Pw-2,

Pw-3 timeline initiallyXagreed the completion forDw-1, and even the is that of aof vivid constructed delayed was, works of completion the as contracted works.3 The^tfestion per Clause of Exh.Pl, that arises from such a glaring factual pbsitioiyis whether or not such delay constitutld^the^kind of construction delays which amountSat^a^breacfi^o^contract and, thus, from which the Plajntiff can^recover compensation from the contractor? twelve (12) months from the date of commencement, the site handover date was the 5th day of February 2012. In his testimony, Pw-1 testified, and Dw-1 does acknowledge, that, by mutual agreement, the completion period was extended to from 5th February 2012 to Page 40 of 63 December 2013. But, even so, the construction works were still incomplete. It is also clear from the evidence of Pw-1 and Dw- 1, that, on or about January, 2014, the contract's completion period was further extended and a handing over of the completed works to the Plaintiff was supposed to be done on the 15th day of November 2014. As clearly shown on Exh.P-5, which is a revised Works' schedule tendered as evidence, the works were to be completed on the 14th day of November 2014 (and^thus, a hand over was to be the next day whidSwasxhe^lS81 day of November 2014), but thajt^ever^happgijgdir Ordinarily, therquestion\which_may be raised here is: was the Defendant con,trjartorysupposed

to stick to the schedule of works (iie., Exh.P5)? In essence, where there are/Changes tojhe completion timelines, the parties may^as^demfest'rated in this case, agree to another timeline ancl require the contractor to submit a fresh \\ \\ * prograqwrsGhedule of work for execution of the works. However, that submission, in itself, does not mean that there is a contractual obligation to keep to that program in its strict sense. What matters is that, the works, regardless of which one starts and which one follows, are completed within the agreed time of completion. Page 41 of 63 Certainly, it is for such a reason that, most construction contracts would require contractors to maintain a satisfactory rate of progress throughout the project, provided that, the works are on the track of completion within the agreed period. In her testimony during cross-examination, Dw-1 stated that, there was another work schedule which completion date remained the l^day oOJovember 2014 and, the works ought to^^^en^gded over in their complete form on the^-1'5^ dayxof November 2014. Since evidence on .record^shows that such works A \X X) k were not completed onjime,yas per Exh.P7, Exh.P.ll, Exh.P13,<Exh.P.17>, Exh.Pl8, Exh.P19, Exh.P21, jC \y Exh.P3Z ahd«E5m;R38, there can be no dispute that the contractedXvorkS/Were not completed within the agreed time ancj,hence, the reason why the dispute at

hand erupted. As a matter of principle, a contractor is said to have completed a project when every item of that project is fully performed devoid of defects. I do understand, however, that, logically, it is often impossible to complete a construction project neatly as it appears in its archetype or the drawings and specifications. In most cases, for Page 42 of 63 instance, the best language employed, rather than providing a hard and fast definition of the term 'completion', is a reference to the terms like "practical completiori' and " substantial completiori' In the case of H W Nevill (Sunblest) Ltd vs. Wm. Press & Son Ltd (1981) 20 BLR78, for instance, Nwey, J., had the following to say regarding what practical completion would mean: A "I think that the word "practically" ... gave^t^ architect a discretion, to certify that William Pfess-had''fulfilled. its obligation^... where^very minop'tZeyn/WOT/S'Worathad not fl a \\ y been\carried;put, but’ if there \ \\ ’ ' werexany patent defects in wnatWVilliam Press had done ;the architect could not have giveir'a certificate of practical cdmpletion." (Emphasis added). From the above, it would mean, therefore, that, "practical completion" of a construction project contemplates a project in a situation which would entitle the owner to enter into its full possession with no outstanding works remaining to be carried out, save for very

minor or often negligible works which may be still left incomplete by the contractor. Page 43 of 63 As regards such works, the principle of' de minimis non-curat iex (the law does not concern itself with triflesjzzwill definitely apply as a test of completion which makes trivial defects exceptions to the concept of "completion of works". In an earlier House of Lords' decision in City of Westminster v Jarvis, [1970] 1 W.L.R. 637, the Court had the following to say: A "The Contract does not define what is meant by 'practically completed'. One would normally say that, a task^was^practically completed4hen iKwasalntost but not^entirelyxTnished; but 'Practical Completion' \\ Yi ^s|jggeste^that^that is not the ::^intended meaning and, that, \^what^isT meant is the ^completion of all the Construction work that had J to be done." (Emphasis added). As I stated here above, the other term used in the alternative or interchangeably is "substantial completion." In the Indian case of Patel Engineering Ltd. And Anr vs. National Highways Authority AIR 2005 Delhi 298, the Delhi High Court observed that: Page 44 of 63 "Substantially completed works means those works which are at least 90% completed as on the date of submission (i.e. gross value of work done up to 1 month before the date of submission is 90% or more of the original contract price) and continuing satisfactorily...." As it may be

noted in the above, constructionvworks which are said to be "substantially^complete^would mean that, such works are in a state whereby^the client is capable of taking possessior^f^hem,'for purposes of occupation, without mucfixado and, whatever may be considered as 'minor outstanding, world and/or 'defects' will remain to bexrectified within the defect liability period. From^such diScussion/'therefore, whether one refers 1} \S-’ to 'practicals^Goqip^ed" or "substantially completed" wor^the'-gist^oj. it would mean that, a particular given project^s^sufficiently complete, that is to say, that, the completecFwork aligns with what was detailed in the construction contract and the owner can readily utilize his property for its intended use. In view of the above, and, as regards the works for which this suit relates, can it be safely said that the works in question were substantially or practically Page 45 of 63 complete? To respond to that enquiry, one would have to refer to Exh.P37 and Exh.P38. Although Dw-1 vehemently denounced the utility and reliability of these two exhibits on the ground that they were unilaterally procured, I do not find that to be a correct position when one looks at the facts on the ground in light of the testimony of Pw-1, Pw-2 and Pw- 3. Further, taking into account that Exh.Pll, Exh.P13, Exh.P14, Exh.P.15, Exh.P16, Exh.P18and Exh.P19 provides background

information, whicn^in onerway or the other, lend credence as tcPhow The tv?b reports (Exh.P.37 and 38) canj^^^U^Ksgfejno reason why I should regard the .two^ repqrts'as/ being useful and reliable. ft /t It is als^x:lear^foNratance, and well admitted by Dw-1 whileTirider^cross-examination, that, when Pw-2 £7 v and^w^w^re carrying out their assessment, they did recede documents’from the Defendant upon request and the Defendant's personnel did take part in the site meetings which lead to the making of what is Exh.P.13, For that reason, I do safely make a finding that Exh.P.37 and 38 are reliable documents. Having said all that let me revert to the issue of completeness of the project works. According to the testimonies of Pw-1, Pw-2 and Pw-3 (and Exh.P.37 and 38 which were tendered in Court by Pw-2 and Pw- Page 46 of 63 3 respectively), the works were by all standards incomplete and full of defects and, necessitated major and minor rectifications, some of the defect being visibly seen by naked eyes. In his testimony, Pw-1 stated that, in some instances, the engineering drawings did not even match with the architectural design used for construction. Further, according to Pw-3's testimony, the entire project was only about 74% complete./Even so, Pw-2 told this Court that, the building still neea^djnajor and minor rectifications and, for that rea§oh>xPw-3/was of further testimony

(and as per\ExmP38y(and also Exh.P37)), that; given the cofr.ective^works that needed to be carried ouU=at^ trie site,. those completion percentages noted herein/ile., the 74% percentage of X \\ the completed wo^)^retx^be further scaled down. If sdbStantial'completion, as observed in the earlier cas^referre^j^here above, (see Patel Engineering Ltd & Another vs. National Highways Authority W Xi * (supra)^means that, the construction works are at least 90% completed as on the date of submission, it is clear from Exh.P.38 and the testimony of Pw-3, that, the works were far from being complete by the time when the Plaintiff decided to terminate the Contract, on the 2nd day of October 2019, (Exh.P25), which was more than 5years from the date when the Defendant should have handed over the works. Page 47 of 63 In the South African case of Group Five Building Limited vs. Minister of Community Development (449/91) [1993] ZASCA 75; the Court was of the view that, "A contractor is bound to complete the work by the date stipulated in the contract for its completion. If he fails to do so he will be liable, if so agreedk for liquidated damages^) the employer. The employer^' will^ not, however, be enttledMc?'' liquidated darndc^^ or omissiorNhe prevented the contractor fror^completing the . lx „, A _ contract bylhe>agreed date. As A \\ v ibwas puUty_Vaughan Williams ’ >^yS’case supra at

354/ "HjVpe contract one finds the ^tirrie limited within which the builder is to do this work. That means, not only that he is to do it within that time, but it means also that he is to have that time within which to do it." According to Exh.Pl, at the stated contract price of TZS 324,196, 436/=, the Defendant contractor was obligated to construct and complete a residential building in accordance with agreed technical drawings, work Page 48 of 63 schedule and the BoQ, and, the building contracted for was required to be completed and ready for use and occupancy (after extension of time) by the 15th day of November 2014. However, as per Exh.P37 and Exh.P.38, the various defects observed upon inspection, makes the entire project to be one constructed well below expectations, and some defects noted arose from lack of adhering to specifications stated in the Bc$. From the above observations and discussions, it follows, therefore, that, since the '^^idan^ailed to complete the works within the^agreed 'date and in and the BoQ, the Defendant's failure amounted to a serious breach of tine contract^With such a finding, the x \\ * first issue is respqtxledTp^affipmatively. The<fecond issue was predicated on the first issue being=responde3Ftb'affirmatively. The issue was that: Slf the first issue Is In the affirmative, whether the Plaintiff contributed to 'the alleged breach by the

Defendant. In her testimony in chief, Dw-1 did testify that, the Plaintiff was to blame for the delay to complete the works. She told this Court that, the conducts of the Plaintiff from the beginning of the project, left much to be desired, including, that, the Plaintiff left the issue of registration of the project in the hands of the Contractor, Page 49 of 63 hence, the stop orders (Exh.Dl) which contributed to the delay. Besides, Dw-1 told the Court that, the Plaintiff did also interfere with the project and failed to adhere to the established professional standards as he became a sole decision maker - an architect, a structural engineer and QS. She also raised the issue of Plaintiff making various major variations. Essentially, under the English law, for instance, there is, L> in the construction industry, a so-called 'prevention principle" XL \ f whose effect is to prevent a party, in the absence of clear terms to the contrary, from taking advantage of its own wrongs. If, for instance, the employer prevents the / ' Xk y contractor from completing the contracted works (either by the employer's legitimate conduct or by breaching the contract), most construction contracts would either IL~ Xhz provide a mechanism for extending the completion date t XX to reflect the employer's act of prevention or where there is no such a mechanism, the parties, may, by mutual agreement, vary

the contract and agree on a different completion date. As a matter of fact, the prevention principle will apply even where there is no a mechanism within the contract which regulate matters regarding extension of time, or where such mechanism exists in the contract but fails to clearly address what happens to the completion Page 50 of 63 date, in the event that it is the employer who caused the delay. In the context of construction law, the said principle of prevention dates back to as far as the case Holme vs. Guppy (1838) 3 M81W 387 and this seems to be the first case to introduce the concept of "time at large", a concept later upheld in Dodd vs. Churton [1897] 1 QB 562. X In that latter case, Lord Esher was of the view, at page 566, that: , vsx \z if the building owner has ordered extra work beyond that specified by, the original contract which has Al kMlil. necessarily the time requisite for Z XX lZ finishing the work, he is thereby disentitled to claim the penalties for wn-completion provided by the XmA »i I,- contract. The reason for that rule is jthat otherwise a most unreasonable burden would be imposed upon the ^Contractor," XjA modern approach to the principle, however, developed to amplify it further. This was developed by Lord Denning, in the case of Trollope & Colls Ltd vs. North West Metropolitan Regional Hospital Board, [1973] 1 W.L.R. 601, a case which was

upheld in the House of Lords. In that case, the Court had the following to say, at page 607, that: Page 51 of 63 "It is well settled that in building contracts - and in other contracts too - when there is a stipulation for work to be done in a limited time, if one party by his conduct - it may be quite legitimate conduct, such as ordering extra work - renders it impossible or impracticable for- the other party to do Kis-work within the stipulated time^ then the one^^^rond^ caused the trouble^can\noz lon^erj^nsistx^ upbr^, strict adherence A to\>the time .stated. He cannot claim any pen^fes^^or liquidated damages for non-completion irbtbat time." \\ A somewhat more recent, but still orthodox view, W was statedjjy Jackson, J in Multiplex Constructions (UK) Ltd vs. Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC). The Court in this case stated that; "In the field of construction law, one consequence of the prevention principle is that the employer cannot hold the contractor to a specified Page 52 of 63 completion date, if the employer has by act or omission prevented the contractor from completing by that date. Instead, time becomes at large and the obligation to complete by the specified date is replaced by an implied obligation to complete within a reasonable, time. The same principle applies as between mairr contractor -^and\ sub- contractor:" In Group Five-Building

Limited vs. Minister of / y Community DevelopmentTsupraythe court observed from the English position;,thatx | "Anyx^onduct on the part of Xh^employer or his agent, whether authorised (e.g. the issue of variation or suspension orders) or wrongful (e.g. the failure to deliver the building site or plans or instructions by an agreed date) exonerates the contractor from completing the contract by the contractual completion date. Time then becomes, as it is Page 53 of 63 sometimes stated, at large. The Work must then be completed within a reasonable time." In the instant case, however, the position stated in the above cited cases, though relevant and highly persuasive, cannot be of aid to the Defendant's case. It is also clear to me that, Dw-l's testimony regarding the Plaintiffs conduct, cannot give the . Defendant any meaningful mileage. I find it to be so, because, first, in respect of the variations effected during the lifetime of the parties' contractual relations, the same were, as per the testimony of Pw-1, variations proposed either by the Defendant or by the Plaintiff and mutually agreed, "costed" and paid for. The email communications between the parties, admitted in Court as Exh.P29 as well as Exh.P31 well reveals that mutual agreement. Secondly, the issuance of stop orders and the time lost thereby were all matters taken care of by the parties' mutual agreement to change

the completion date of the contracted works from being the initial 5th day of February 2012 to December 2013 and, later again to 15th day of November 2014. Thirdly, according to Pw-1 and Exh.P.3 and Exh.P4, the Plaintiff had in place the services of two consultants, one for structural engineering works and the page or os other as Qs. In view of all that, it cannot be said, in my considered view, that, the Plaintiff assumed the role of client as well as structural engineer, architect and quaintly surveyor as claimed by Dw-1. For that matter and, from the available evidence which I have laboured to take into account here in, I am unwilling to accept what Dw-1 states in her testimony, to wit, that the Plaintiff is to blame. On the contrary, I find, therefore, that, the Defendant's sloppiness in executing the works as evidenced by what Pw-1 states as his complaints evidenced in Exh.P32 (the various emails some of which contain the Plaintiffs complaints and dissatisfactions against the Defendant's performance of the works at the site, as well as what Pw-2 and Pw-3 stated in respect of Exh.P37 and Exh.P38), there is no doubt that, the Plaintiff cannot share the blames at any rate. That being said, the second issue is responded to in the negative. The third issue is: Whether the Plaintiff suffered damages as prayed due to the Defendant's breach of contract. In the circumstance of all

what transpired in this case, it is without doubt that, the Plaintiff has suffered damage due to the Defendant's breach of the construction contract. According to sections 73 of the Law of Contract Act, Cap. 345 R.E 2019, damages are r w vi vj awarded as an entitlement to a successful claimant in a claim regarding breach of contract. Generally, such damages are of compensatory in nature and more often they fall in two limbs: special (consequential damages) and general damages. In particular, special damages cover any actual loss suffered by the innocent party and these, as it was stated in the case of Stanbic Bank Tanzania Ltd vs. Abercrombie & Kente (T) Limited, Civil Appeal No.21 of 2001 (CAT) (unreported), must not only be pleaded but also particularised and strictly proved. See, for that matter, the case of Cooper Motors Corporation (T) Ltd vs. Arusha International Conference Centre [1991] TLR 165 CAT. In this instant case at hand, the Plaintiff has pleaded for payment of special damages to a tune of TZS 398,842,534.03, this being a sum total that takes into account, costs of completing the construction works, loss of earning and costs of engaging consultants, transport costs, stationary and allied costs. Essentially, in a construction matter as the one at hand, where a contractor fails to complete a contracted project or abandons the project and is liable for breach

of contract, the appropriate measure of direct damages which s/he must pay for abandoning or otherwise failing to complete the project under a fixed price, lump sum Page 56 of 63 time-bound contract, is the increase over the original contract price which the project owner would have to pay if the project is to be completed. In present suit, it is clear, in the first place, and according to the testimony of Pw-2, taking into account Appendix 7 of Exh.P38, that, currently the project needs demolitions, modifications and major rectification works on various parts ranging from its underpinning superstructure and substructure, staircase balustrade, replacement of the deformed gypsum ceiling due to leakage, to mention but a few. According to Exh.P37 and Exh.P38, such extensive rectifications and re-doing of various works which need to be carried out if the house is to be said to have attained the state of substantial completion, has adjusted the Contract sum which, as per the testimony of Pw-3 and Exh.P38, stands at TZS 423,440,690.01 as of now. This means, as per the testimony of Pw-3 and Appendix 2 to Exh.P38, that, it will cost the Plaintiff a total sum of equal to TZS 165,787,893.53, if the project is to be completed. By virtue of the testimonies of Pw-2, Pw-3 and read together with Exh.P37 and Exh.P38, it follows, therefore that, the Plaintiff has succeeded to establish why TZS

165,787,893.53 should be paid as part of specific damages to the Plaintiff. Page 57 of 63 Secondly, the Plaintiff has claimed for loss of rental earnings from his property which is equal to TZS 900,000/- per month, from the time when the project ought to have been completed in 2014 to the date of judgement. In his endeavour to prove this, the Plaintiff has relied on the testimony of Pw-4 and Exh.P.39. As a matter of principle, therefore, where there has been an unjustified delay in completion of a construction project, a client is entitled to be compensated for the loss of rental amount which he would have earned from his property based upon the fair market net rental value. Perhaps the case of Fisher Island Holdings, LLC vs. Cohen, 983 So.2d 1203 (Fla. Dist. Ct. App. 2008), will illustrate that point. The facts of this case were that, Mr and Mrs Cohen (the "Cohens") sued Fisher Island Holdings, LLC ("Fisher Island") alleging breach of contract arising out of the construction and purchase of their Fisher Island home. The construction of the Cohens' home was to be completed no later than two years from the signing of the Agreement for Sale on December 4, 2002. As per the agreement, the closing should have occurred shortly after December 2004. The contractor failed to substantially complete the contracted works timely and the Cohens were forced to enter into a nine-month lease in

the amount of $144,000 for alternative living arrangements. On trial, Page 58 of 63 the Court granted the Cohens' directed verdict as to liability for the delay in construction, leaving it to the jury to determine the amount of damages the Cohens were to receive. Of particular importance, and, relevant to this instant case of ours, is that, the Court in Fisher's case stated, relying on an earlier decisions in Russo vs. Heil Constr., Inc., 549 So.2d 676, 677 (Fla. 5th DCA 1989); Vanater vs. TomLilly Constr., 483 So.2d 506, 508 (Fla. 4th DCA 1986), that: "Damages for" ^delay construc^n^£re^ea§ure^^Z the rentaR^value^^^ the builSing^ unddr^onstruction ^^uri^the per^iod of delay." In that case, the jury calculated the delay damages based upon the fair market net rental value of the home and thereby awarded delay damages. In yet another decision by the Court of Appeal of Ghana, in the case of Benda vs. Awuku 1978 (2) ALR Comm.281, the same approach seems to be applied, whereby, the Court held that: "If the builder fails to carry on the work and complete the building at the time agreed upon, the usual measure of general damages for the delay Page 59 of 63 is the rental value of the building during the period for which the completion was delayed." As it may be observed in the above cases, the award was regarded as general damages. However, the principle will equally apply in a

situation like the one at hand, where the Plaintiff has claimed for specific damages in the form of loss of rental benefits which he expected to derive from the property and for which the monthly ranges were well established by Exh.P39 and the testimony of Pw-4. One notable thing according to Pw-4, however, is that, the rent could have ranged between TZS 700,000 - TZS 900,000/-per month. The Plaintiff has not been able to justify why the highest amount of TZS 900,000/= should be the benchmark. For that reason, I will award the specific losses based on the least rental amount, which is TZS 700,000/- per month from the 15th day of November 2014 to the date of this judgment of the Court. The third specific claim relates to repayment of transport costs incurred by the Plaintiff, amounting to TZS 8,750,989.00 (equal to $3,805.00 at the time these costs were incurred). The testimony of Pw-1 and the evidence of Exh.P22 do prove that such amount was spent and for the purposes connected to this matter at hand. As such, the Plaintiff has also established these claims and is entitled to be paid that amount as claimed. Hage bu or bs The fourth category of specific claims relate to costs of engaging consultants. A sum of TZS 22,834,046.50 was claimed and the testimony of Pw-1, Pw-2, Pw-3 and Exh.13, Exh.17, P37 and P38 are all evident that certain provable costs were incurred by the

Plaintiff and Exh.P23 shows the costs for such. To me, this claim is fully pleaded and strictly proved, hence justified as a specific claim. As regard the claim for payment of general damages, generally payment of these, unlike specific damages which need to be pleaded, particularized and proved, need not be proved as their award is at the discretion of the Court based on the available evidence on record. See the Ugandan case of UCB vs. Kigozi [2002] EA 305 and the case of Southern Engineering Company Ltd vs. Mulia [1986-1989] EA 541. From the above understanding and, based on the evidence submitted to the Court as a whole, therefore, I am indeed satisfied that, the Plaintiff suffered under the hands of the Defendant, and is entitled to be paid general damages which, having looked at the entire evidence supporting the Plaintiff's claims, I hereby assess the claim of general damages to be the tune of TZS 25,000,000/- The fourth and last issue is: Page 61 of-'63 'to what relief are the parties entitled.' Essentially, the party who succeeds to prove the case to the required standards is the one who carries the day and will be entitled to reliefs. In this case, the balance of probabilities lies in favour of the Plaintiff as against the Defendant. In other words, the Plaintiff has been able to discharge his burden and has proved the case to the required standards. In the upshot, it

is the Plaintiff who is therefore entitled to judgement and decree of this Court. This Court enters judgement and decree in his favour as follows: 1. That, the^ Defendant^js hereby ordered to pay to'the-.PIaintiff a sum z \\ A V X. TZS 165/787,893.53, (plus NX \\ / s^VATJ^beingtECOst of completing the A x\ variousxinfinished y works, carrying out rectifications and re-doing of various works at the project site. 2;1 That, the Defendant shall pay a sum of TZS 700,000/= per month, being loss of earnings/rental value, to be calculated from the month of December 2014 to the date of this Judgement.

3. That, the Defendant shall pay the Plaintiff a sum of TZS 8,750,989.00/= being amount Page 62 of 63 covering travelling, accommodation and other miscellaneous expenses incurred by the Plaintiff.

4. That, the Defendant shall pay the Plaintiff a sum of TZS 22,834,046.50, being cost incurred by the Plaintiff to hire consultancy services.

5. That, the Defendant shall pay general damages to the Plaintiff amounting to TZS 25,000,000.

6. That, the Defendant shall pay interest on the decretal amount stated in Nos. 1-4 here above, at a Court rate of 7% p.a., from the date of this judgement to the date of full payment thereof.

7. Cost of this suit follows the event. It is so ordered DATED at DAR-ES-SALAAM, this 18th Day of FEBRUARY 2022 Page 63 of 63