DTECH FROM MWANGA J

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 133 OF 2023 M/S DKETECH COMPANY LIMITED………….………………………… PLAINTIFF VERSUS M/S LARSEN & TOURBO LIMITED...…………………………………. DEFENDANT JUDGEMENT 5th December 2024 & 27th February, 2025 MWANGA, J. The plaintiff above sued M/S LARSEN & TOURBO LIMITED for breach of subcontract agreement for civil and tower erection works for the Standard Gauge Railway (SGR) electrification. It is asserted that, sometime in 2020, the defendant was awarded the contract for the design, supply, installation testing, and commissioning of the 220kv Morogoro-Makutupora Transmission line project for electrification of the Standard Gauge Railways (SGR) line LOT2-2 [Ihumwa-Zuzu via Kigwe and Kintiku] inclusive of the substation by extension. Then, the defendant invited the plaintiff on 14th October 2020 to quote “Tower erection works” with full compliance with the 1 applicable standards and local requirements as per the TANESCO specifications. After the negotiation meetings, the bid was submitted, and a conversation between the parties was concluded. Defendant was impressed and convinced that Plaintiff was capable of doing the work, and thus, it decided to award Plaintiff a subcontract for foundation works for the transmission line and tower erection by issuing the letter of Award (LOA). Under the said letter of award, referenced LT/2020/SGRPH2.2TL-/LOA- 07 dated 04/04/2021, the plaintiff was subcontracted for the 100-tower foundation works for SGR2.2 Project and its associated location from the Kigwe substation to the Kintiku substation at the price of TZS 1, 167,236,117.66 and offer validity was 60 days, i.e., period of two months from the date the plaintiff is issued with a notice to proceed by the defendant. A clause in the LOA provides that a signed contract and /or work order ought to be issued to the plaintiff separately after accepting the LOA and approving it. Other terms of the agreement are that the plaintiff was required to give an unequivocal acceptance of the letter of award within two days of insurance of the letter of award, and silence should be deemed to 2 be acceptance. Thus, on March 3, 2021, the Plaintiff accepted the LOA and treated it as a valid contract between the parties. Above all, the letter of award was to be treated as a mutual agreement for the commencement of work and mobilization of the team, i.e., men, machines, and equipment at the site. More or so, the letter of Award was enclosed with the price schedule, scope subcontract division of responsibilities, agreed milestone schedule, and meeting minutes dated 19th October 2020 to form part and parcel of the agreement. It occurred that, on 31 March 2021, Plaintiff received a letter with Ref: L&T-TZ/SGRTL2.2/LOA-07 in which Defendant instructed Plaintiff to start mobilization for the startup of civil foundation activities, specifically to arrange mobilization of equipment and manpower at the site on or before 11 April 2021. In compliance with the above instruction, Plaintiff continued to mobilize manpower and equipment. That included hiring, purchasing, and mobilizing equipment to the construction site. The plaintiff also had to establish secured camps for the staff, equipment, and office to deliver quality work as needed by the Defendant/ camps in a timely manner. With time, the 3 Plaintiff also hired casual and skilled labor, both on a contract basis and on a daily basis. For better appreciation and clarity, the plaintiff pleaded that the whole process cost the plaintiff TZS. 957,625,169.48 emanated from the following areas the Plaintiff mobilized 200 men to work as casual laborers at TZS. 10,000,000.00; salaries elating labor, technical team, and project management at TZS. 306,000,000.00; hiring 10 security guards for three months totaled TZS. 10,500,000.00 per guard; salaries for other staff and drivers for three (3) months TZS. 24,000,000.00; establishing a camp and renting houses and office furniture to settle at the site at TZS. 35,230,000.00; meals to all staff working for Defendant for three months at TZS. 108,000,000.00; procuring and providing safety gear (PPE) to all staff as required under the agreement at TZS. 18,000,000.00; purchasing the hand tools and other equipment necessary for the contractual obligation at TZS. 47,600,000.00; costs for the chimney boxes, props, and platforms at the sum of TZS. 84,000,000.00, and mobilize the batching plant at the cost of TZS. 25,000,000.00. Also, Plaintiff asserted that she incurred the costs related to site visits, surveys for locations for works relating to foundation works, and the erecting 4 of 100 towers for the total sum of TZS. 30,000,000.00; mobilized various machines and equipment to the construction site at the total costs of TZS. 123,700,000.00, which included the mobilization and hiring costs as indicated below: - a. Excavator Bucket with Reg. No. T 876 DLE property of REGINALD MOSHA, which was hired for TZS. 18,200,000/- and mobilized to the site for TZS. 10,000,000.00; thus, the total costs incurred were TZS. 28,200,000.00 b. Excavator with Breaker with Reg. No. T356 DRV property of REGINALD MOSHA hired for TZS. 35,100,000.00 and mobilized to the site for TZS. 10,000,000.00; thus, the total costs incurred were TZS. 45,100,000.00. c. BACKHOE with Reg. No. T 974 DMH property of REGINALD MOSHA, hired for TZS. 27,500,000.00 and mobilized for TZS. 6,000,000.00; thus, the total costs incurred were TZS. 33,500,000.00 d. BACKHOE JCB with Reg. No. T 273 DHE property of SIMON CHIMOMBO, hired for sum of TZS. 10,900,000.00 and mobilized 5 for TZS. 6,000,000.00; thus, the total costs incurred were TZS. 16,900,000.00 Equally stated that the Plaintiff incurred the costs of TZS. 105,000,000/- only costs for hiring and mobilizing vehicles and trucks to the construction site. These vehicles and trucks are: - a. PICK UP MAZDA 4X4 with Reg No. T 986 AAA from KONDO H. KONDO, which was hired for TZS. 13,500,000.00 and mobilized to the site for TZS. 750,000.00 and thus total costs incurred TZS.14,250,000.00 b. TOYOTA PICK-UP with Reg. No. T 476 ALQ from CALVIN MANANGWA, which was hired for TZS. 13,500,000.00 and mobilized to the site for TZS. 750,000.00 and thus total costs incurred TZS.14,250,000.00 c. TOYOTA PICK-UP with Reg. No. T 230 ADS from ENG MAKANDI MANGE, which was hired for TZS. 13,500,000.00 and mobilized to the site for TZS. 750,000.00 and thus total costs incurred TZS.14,250,000.00. For the foregoing, Plaintiff contended that she commenced the works as agreed, relying on the LOA, with hopes that Defendant would keep her 6 promise of delivering a subcontract for signing. The lack of this has affected the Plaintiff's contract performance due to a lack of funds, certainty of terms, and enforceability of obligations. Again, as the meetings and conversation between the parties were based on the sub-contract agreement, which was not signed, the performance of sub-contract works was difficult and improbable to the Plaintiff as she was not given any advance payment and could not obtain any facility from the financial institutions as it was not included in the LOA. Passing through such hardship, on 29th May 2021, Plaintiff wrote a letter to Defendant requiring her to amend the letter of award by including a 10% advance payment; Defendant never heeded nor responded to that letter. Plaintiff asserted further that, despite having allocated 100 towers, Plaintiff later learned that Defendant had allocated some parts of his work to other subcontractors without his knowledge, reason, and notice. And Defendant, while not paying Plaintiff, has been paying those other subcontractors. Apart from that, the Defendant failed and neglected to remit and pay the Plaintiff the sum of TZS.16,747,399.40, which is 10% of retention of all completed foundation works whose invoices were delivered and received by the Defendant, and the sum of TZS. 9,716,114.60, which is 7 10% of retention of all completed erection works whose invoices were also delivered and received by Defendant. Additionally, upon completing some works relating to foundation and erections, Plaintiff issued invoices for payment by Defendant. Some of the raised invoices have remained unpaid to date; those invoices are Invoice No. D260-2021 for the sum of TZS. 30,173,270.00, Invoice No. D269-2022 for the sum of TZS. 8,297,277.00, Invoice No. D271-2022 for a sum of 3,245,807.00 and Invoice No. D262- 2021 for the sum of TZS. 6,065,301.48. Likewise, despite an agreement to pay for Labour works, Defendant has, without any justification and reason, neglected and refused to pay the works concerning Labour Works done in location 35/10, amounting to TZS. 1,300,000.00. About what has been pleaded above, Plaintiff prays for the judgment and decree against Defendant for orders in the following terms: - i. A declaratory order that the Defendant breaches the agreement; ii. An order that the Plaintiff is entitled to be paid the sum of TZS. 957,625,169.48, only the actual value of lost properties and products suffered by the Plaintiff because of the unlawful demolition; 8 iii. An order directing the Defendant to pay the Plaintiff general damages at such sum as may be assessed by this Honourable Court but not less than TZS. 500,000,000.00; iv. An order directing the Defendants to issue the Plaintiff with a certificate of completion regarding completed works; v. Interest on the decretal sum at the rate of 25% (Commercial rate) from the due date of the breach to the date of Judgment; vi. Interest on (b) above of Court’s rate from the date of Judgment to the date of full and final satisfaction of the Decree; vii. Any other relief(s) the court may deem just and equitable to grant; and viii. Costs of this suit be paid by the Defendant. In the written statement of defense, the defendant denied the plaintiff's allegations of breach of the agreement, putting the Plaintiff under strict proof. According to the defendant, Plaintiff emailed on 1st April 2021 to request the letter of award and signed contract; on 4 April 2021, Defendant forwarded a signed Letter of Award to Plaintiff. On 5 October 2020, the defendant emailed the plaintiff, enclosing, inter alia, a draft of the subcontractor agreement. It is the Defendant's case that Plaintiff had agreed 9 to payment obligations with Defendant as all-inclusive as shown on page 2 of the LOA, and it is the averment by the Defendant that under the signed LOA: a. The final price agreed by the Plaintiff was TZS 1,167,236,117/66 (excluding VAT) for the works; b. Payment was to be progressive payment (90%) against invoices raised by the Plaintiff; c. The tenure for completion of the works agreed was 2 months, whereafter the Plaintiff would be given a Completion Certificate by TANESCO; The defendant added that, in so far as the agreement is concerned, the LOA pages 2-3 specifically state that the subcontractor was under a duty to complete the full scope of works by providing skilled Manpower, Materials, and Machines. In case of any delay in activities, additional resources were to be mobilized per contractor representative instructions to recover the same on time without any extra cost to the contractor. The defendant referred to the General Responsibilities part of the LOA, which provided that mobilization of all resources was to be arranged at the sole expense of the Subcontractor, and all vehicles, plant, and equipment 10 ought to be in the Subcontractor's scope. The subcontractor ought to supply all health and safety equipment and provide accommodation, transport, and meals for their employees. Importantly, no extra claims or idle charges of any nature will be entertained for whatever reasons. Defendant elucidates further that it was never her obligation to pay any expenses related to mobilization but rather the Plaintiff’s obligation. To build her case, the defendant insisted that there was delay and/or failure of the Plaintiff to fulfill her contractual obligations and achieve the agreed milestone/targets under the LOA subject to the terms of the Agreement that included the subcontract agreement had profound adverse impact on the Contractor’s program and overall performance under the main project and these delays on the part of the subcontractor have significantly disrupted the Contractor’s plan for energization of transmission line project and prevented the Contactor from energizing with the outage window as planned and expose the Contractor to penalties with his main employer. Equally significant, the Defendant pleaded further that the payment terms clause under the LOA clarifies that 90% progressive payment ought to be payable against each invoice within 30 days on a pro-rata basis from the date of the subcontractor invoice certification by the Contract Project 11 Manager and after deduction of a 10% retention amount. However, the purported invoices claimed by Plaintiff were overtaken by the delay notice issued by Defendant on 15 June 2021. It is added that the same was replied to by the Plaintiff, admitting that his company faced cash flow problems, which affected the whole project execution plan due to inadequate manpower, equipment, and machinery. As to the assertion that no payment was made for the work done, the defendant insists that all the mobilization costs, which were supposed to be paid upon signing the bill, were paid as referenced in the debit note admitted as exhibit DE4. Moreover, the defendant insisted that the delay notification dated 15th June 2021 requested the Plaintiff to adopt all best efforts and expedite his construction process to avoid any further delays and the impact thereof on the agreed project completion date, whereby failure for which should compel the contractor to invoke any contractual remedies available to him under the subject Draft of Subcontract Agreement sent to him vide email on 5th October 2020 to secure the best interest of the subject project. Therefore, as the defendant put it, the Plaintiff was notified beforehand through the delay notification. Given these facts, the Defendant prays for the dismissal of this suit with costs. 12 Mr. George Nyangusu, a learned counsel, represented the plaintiff throughout the hearing. In contrast, the defendant enjoyed the service of Ms. Rashida Jamaldin, who was also a learned counsel. As far as the pleaded facts are concerned, the court framed the following issues for determination; i. Whether the defendant breached the agreement. ii. If the first issue is answered in the affirmative, whether the plaintiff suffered a loss due to the breach. iii. To what relief are the parties entitled? During hearing, the Plaintiff presented one (1) witness and 15 exhibits. Meanwhile, the defendant also presented one witness and four exhibits. Mr. Uswege Elia Mwansule testified for the plaintiff as PW1, and the defendant was led by Mr. Anil Kumar Giri, who testified as DW1. In his evidence-in-chief, Mr. Uswege testified that the plaintiff claims a specific amount of Tshs. 957,000,000/= as mobilization costs and unpaid money for the foundation work done. According to him, on 14/10/2020, the defendant increased the scope of the work by constructing the baselines of the power transmission lines. So, they sent them a new draft contract and requested a quotation. Testified further that, on 17/10/2020, they conducted 13 online meetings in Dar es Salaam, Kenya, India, and Dubai to agree on the price and how the project would be implemented, and on 28/10/2020, they agreed on the price and scope of the work. The official document from 2/11/2020 to 16/1/2021 was shared with the defendant. He told the court that constructing the transmission line tower and baseline cost approximately TZS 1,900,000,000/=, and the price is based on the quality surveyor's valuation of the work and the profit margin. The said 1.9 billion caters to mobilization, exertion demobilization, and project land over costs. He tendered email correspondences collectively covering October 5 to 8/10/2020, as exhibit PE1. Also, tendered email correspondences dated 30 October 2020 up to 18/1/2021, where they were engaged through visual meetings, were admitted as exhibit PE2. According to the plaintiff, the Agreements-LOA was signed on 4/4/2021, and they agreed the agreement would be deemed signed once the email was received, but the plaintiff remained silent. It is further said that the award letter should be considered a temporary contract while the main contract is being processed. He tendered the emails for the mobilization letter with its attachments, the letters of the award with their attachments, 14 and the safety meetings emails, which were collectively admitted as exhibits PE3 (a), (b), and (c). At the mobilization stage, he said, they employed servants, bought or rented equipment and plants for the project, lived the vehicles and temporary residences for the servants and staff and office, constructed/set up camps, and adhered to environmental regulations such as building toilets. He tendered the Payment sheet as exhibit PE4. Also, they rented houses for residents' offices and officers and purchased a furniture company, which cost them TZS. 35,230,000/=, food cost 108,000,000/=, and TZS 306,000,000/= were used as salaries of employees and other rights. 10,500,000/= was used to pay for security. 24,000,000/= were used for cookers and drivers caring for the staff and managers. Rent and furniture’s 35,230,000/= Tzs 108,000,000/= for food 18,000,000/= used to purchase the safety tools 47,600,000/= was used to buy hard tools and other tools, chimney box and supporting 84,000,000/=, Batching plant and materials 25,000,000/= the 100 surveyed pools 30,000,000/= hiring escalator (2) 10,000,000/= and changing per day a total of 28,200,000/=. He said that the second excavator has 48,100,000/= (35,000,000) daily charges and 10 million as transport charges. Backshore 33,500,000/= (transport and daily charges), and another 15 plant cost 16,900,000/= (identity and transport costs). Pick up 13,500,000/= daily charges and 750,000/= for transport. To substantiate his claims, he also tendered documentary evidence to prove the expenses incurred as follows; i. The documents (Mkataba wa kupangisha nyumba/vyumba/ chumba dated 11/03/2021 – 10/9/2021, Mkataba wa kupangisha nyumba/ vyumba/chumba dated 6/3/2021) Residential House leave agreement dated 15/3/2021 and Mkataba wa kupangisha nyumba/chumba 20/2/2021 are collectively admitted as exhibit PE5. ii. Proforma invoice (Nos. 1001- 2203 – DKE/02, 1001 – 2203 DKE01 and invoice dated 8/5/2021), and petty cash dated 22/05/2021 are collectively admitted as exhibit PE6 (a) and (b) respectively. iii. Mkataba wa kukodisha Backhoe loader, dated 14/04/2021 Mkataba wa kukodisha Gari dated 14/04/2021 Mkataba wa kukodisha Gari dated 29/06/2021, and 31/03/2021, 28/3/2021, 7/04/2021 are collectively admitted as exhibit PE7 (a) and (b) respectively. iv. Agreement for the provision of security services dated 30/03/2021, payroll report dated 31/5/2021, 30//6/2023, payment sheet of May 16 2021, payslip (CRDB) are collectively admitted as exhibit PE8 (a), (b), (c) and (d) respectively. v. Employment contract dated 1/3/2021, 20/2/2021, 10/2/2021, 15/1/2021, 23/1/2021, 6/1/2021, 25/2/2021, are collectively admitted as exhibit PE9. vi. The delivery notes, payment, transportation, and purchase receipts are collectively admitted as exhibit PE10. To put more weight in his claims, PW1 said the contract was extended as per the terms, and in the contract extension, the defendant breached the terms of the agreement as he did not issue notice to proceed, contract and work order, and any changes in the volume of work and price agreed. Significantly, the contractor reassigned the job to another person. He insisted that the time to execute the project was two months, but the validity of such time is counted after the main contractor has issued notice to proceed to the subcontractor. He also agreed that the volume of work should be assessed according to the measurement given by the main contractor, which can be reflected in the drawings, site dimensions, documents, and site conditions. However, to date, nothing has been implemented. 17 Based on this scenario, the plaintiff said he failed to procure/ sign the contract and receive financial assistance from the Banks, get support from the engineering registration board, and get the validity and project date stamped. He tendered the Execution measurement document and JMC (joint measure certificate), which were collectively admitted as exhibit PE11. In addition, he clarified that the pit digging and construction were paid for separately. One pit had three activities. One is the excavation of the pit, steel fixing, and masoning. Each activity was paid separately. He said this was per the Award, BOQ, and Price schedule letter in Exhibit PE3 (c). The Plaintiff emphasized that the factual dispute is measured by the work done. In cross-examination, the plaintiff admits that, as a subcontractor, they did not complete the work within the two months prescribed in the LOA. He said that though the work was not completed, the defendant did not have the right to allocate it to another person without notification. He also said the plaintiff issued invoices to the defendant per the price list, and all were paid except one invoice amounting to TZS 6,000,000/=. In reexamination, he said the certificate of completion is supposed to be issued after the project is completed, and two months were supposed to be 18 counted after the issuance of the notice to proceed. Hence, the project had no validity for failing to issue the notice to proceed. On his part, Mr. Anil Kumar Giril (DW1) gave a detailed account of what transpired in the business dealing with the plaintiff. He admitted having a business relationship with the Plaintiff to execute a civil work project in Tanzania, the SGR Railway Project. He said the plaintiff was awarded the tower erection via email in March 2021. He tendered the email correspondences dated 3/3/2021 and the letter of Award dated 1/3/2021, collectively admitted as exhibit DE1. As per the exhibit, he said the plaintiff's obligation on page 2 was that the subcontractor complete the work within two months. The plaintiff was also supposed to provide a skilled workforce, materials, etc., and pay financial charges in case of any delay. He asserted that everything was to be done by the subcontractor and had to certify a 90% certificate after the work was done to 90%. To him, the plaintiff could not start work within two months because he had financial issues and could not procure the same from the Bank. He said the defendant indirectly helped the plaintiff by directly paying the 19 suppliers for the materials so that he could proceed with his work. Again, they informed the plaintiff they were out of time, as shown in an email dated June 2021 notifying the delay. The Delay notification letter dated 15/6/2021 and its response of 23/6/2021 were collectively admitted as exhibit DE1. He said that the plaintiff’s financial problems contributed to his failure to pay the employees (not paying salary) and suppliers; he was taken to labor court in Dodoma. The email correspondences dated 27/7/2021 and 9/9/2021 are admitted as exhibits. DE3. He insisted that the plaintiff performed the work to 18%—20% only out of 100%. However, due to financial constraints, he could not complete the work. He added that 90% of the payment was made through Bank transfer, and the remaining three to four million shillings were for retention. He tendered three copies of Debit Note No. 001, collectively admitted as exhibit DE4, as evidence of payment. In cross-examination, DW1 said the Company did not issue a notice to proceed as it was unnecessary. The subcontractor was supposed to bear the costs, which were also part of the bid price, and the mobilization time was one week, as seen in exhibit DE1. Additionally, they gave the plaintiff a marking of the pit sizes, and the plaintiff went beyond what was agreed upon in the measurement. Hence, 20 they resolved the problem by not paying extra. According to him, The contract ought to commence in March, the second week, and after the issue of notice to proceed, but Plaintiff started to work on the project in May 2021. Again, on page 3, the last line states that the letter of award is treated as a mutual agreement. Therefore, LOA was sufficient to proceed with the work and mobilize the resources and equipment without the Notice to proceed, work order, and contract. Responding to the complaint about giving another person to do the job, he said they employed their team to complete the work (80%) but admitted that they did not notify the plaintiff that they were taking over the job. I have carefully reviewed the pleadings and examined the evidence on record. The law in Section 110(1) of the Evidence Act, Cap. 6 [R.E 2022] provides that whoever desires any court to give judgment on legal rights or liability dependent on the existence of facts which he asserts must prove that those facts exist. This was also emphasized in Sarkar's Law of Evidence, 18th Edition M.C. Sarkar, S. C., published by Lexis Nexis and quoted the following words: "The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and 21 not upon the party who denies it, for negative is usually incapable of proof. It is an ancient rule founded on the consideration of good sense and should not be departed from without strong reason...Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed based on the weakness of the other party..." Under section 37(1) of the Law of Contract Act, Cap 345, it is a trite law that parties to the contract are obliged to fulfill their promises. The relevant section provides, thus; “The parties to a contract must perform their respective promises unless such performance is dispensed with or excused under the provisions of this Act or any other law.” The above position was re-affirmed in Abually Alibhai Azizi vs Bhata Brothers Ltd [2000] TLR on page 288 and Philipo Joseph 22 Lukonde vs Faraji Ally Said [2020] 1 TLR on page 556. It was emphasized that “Once parties have entered into a contract, they must honor their obligations under their contract. Neither this court nor any other court in Tanzania, for that matter, should allow a deliberate breach of the sanctity of contract.” As per the pleadings and evidence adduced, both parties unequivocally admit that they had a business relationship agreement, which is established by the Letter of Award in exhibit PE3 (b)dated 24 March 2021, which is similar to exhibit DE1 dated 1 March 2021 and its attachments. It clearly states that the LOA shall be a mutual agreement between the parties. For clarity, the said clause reads; “Subcontractor shall give unequivocal acceptance to this letter of Award within 2 days from the date of the insurance if this letter of award. If the subcontractor does not receive a clear acceptance within this period, it will be deemed accepted...please treat this letter of award as the mutual agreement for commencement of the work and mobilize team/men/machine/ material at site.” 23 It can be recalled that the agreement was for the plaintiff to construct 100 nos of foundation and its associated location from the Kigwe substation to the Kintiku substation within sixty days. Henceforth, in the first issue, my noble duty is to determine whether the defendant breached the agreement. In light of the evidence adduced, Mr. Uswege (PW1) admitted that the plaintiff did not complete the work within the prescribed period in the LOA. Likewise, DW1 joins hands and says the plaintiff only completed 18% up to 20% of the work, which the plaintiff did not dispute and never cross- examined. The plaintiff-PW1 also stated that, up to 25/06/2021, the work completed was 10%. Exhibit DE2 is the letter dated 15/06/2021 sent to alarm the plaintiff about his work delay. Up to 15 th June 2021, the plaintiff only executed eight tower foundations, leaving 92 unattended. He was required to furnish a revised schedule plan of work on how he could expedite and meet his contractual obligations no later than three days from the date of the issue of the receipt of the notice. However, on 23rd June 2021, the plaintiff responded that he had cash flow problems facing his company. He pointed out that there is a long chain process within the bank 24 to procure funds, which has caused a lack of finance for manpower, equipment, and machinery. In addition, the plaintiff even sought financial support from the defendant. Still, in the email dated 27/07/2021, exhibit DE3, the defendant refused to advance support because it was not part of the agreement's terms and conditions, i.e., to pay mobilization costs. With the above pieces of evidence collectively summed up, I believe the plaintiff has not made up his case against the defendant. In fact, by any legal standards, there is no breach of agreement on the defendant's part. The two months lapsed without the plaintiff completing the work. I do understand the issues raised by the plaintiff. I know that one of the terms of the agreement was that the defendant should have issued notice to proceed, a contract, and a work order. However, the LOA stated that such documents were to be issued separately from the LOA. In other words, the LOA was a sufficient document to guide the parties as it expressly stated that it was a mutual agreement between them. 25 Given the above, I entirely agree with the defendant that such a clause rendered the notice requirement to proceed, contract, and order to work unnecessarily. I am holding so because, had the plaintiff known that the contract and notice to proceed were important documents, he should not have started the work as per the LOA. In other words, he should have waited until the defendant issued the respective documents. Therefore, I believe he knew such documents were not material, so he chose to proceed with executing the agreement in the LOA. That being said, he ought to comply with the terms and conditions in the LOA accordingly. By the start of implementing the terms in the LOA, the plaintiff’s actions made the defendant believe that they had understood and concluded the agreement. Therefore, the plaintiff is excluded or estopped from relying on the matters settled in the LOA. If the plaintiff had any issue with the documents mentioned, I expected him to indicate the same in his letter to the defendant in Exhibit DE2 when claiming he had no cash to finance the project. The documents were required for him to obtain the loan from the bank. Bringing such contention now is considered to be an afterthought, so to speak. 26 For the foregoing, the first issue is answered in the negative. This being the case, I find it fruitless to deal with the second and third issues, as doing so will involve performing academic exercises. Consequently, the suit is dismissed in its entirety with costs. It is so ordered, accordingly. H. R. MWANGA JUDGE 27/02/2025 COURT: Judgement delivered in Chambers this 27th day of February 2025 in the presence of Ms. Rashida Jamaldin, counsel for the Defendant, also holding the brief of GeorgeNyangusu, Advocate learned counsel for the Plaintiff. 27 H. R. MWANGA JUDGE 27/2/2025 28