CIVIL CASE NO

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CIVIL CASE NO. 10 OF 2022 OMARI BAKARI KALUNDA t/a NTINA GENERAL ENTERPRISES ......... PLAINTIFF

VERSUS ATTORNEY GENERAL ............................................... . 1* DEFENDANT NEWALATOWN COUNCIL ...----- --------- - 2nd DEFENDANT

JUDGEMENT Date of last order: 28.12.2023 Date of Judgement: 19.03.2024 EBRAHIM, J.: The plaintiff, Omary Bakari Kalunda t/a Ntina General Enterprises, has filed this suit against the defendants seeking the judgment and decree jointly and severally as follows: i. The 2nd Defendant be ordered to pay Tshs 76,417,758.2, the amount due to Addendum No 5. Page 1 of 16 ii. The 2-d Defendant be ordered to pay 30% interest from the date of judgment to final payment. in. General damages as per the Court's discretion, iv. Costs to follow events. Going by the plaintiff's averment in the plaint, the plaintiff entered into a contract with the 2nd defendant to build Mahumbika and Amani Dispensary in Newala District for a consideration of Tshs 224,961,070/= Upon starting the project, the plaintiff did not encounter any disturbance from the 2nd defendant even regarding payment. The construction cost soared compared to the contract’s actual sum, with an addition of Tshs 57,222,280/=. Through negotiations, the plaintiff and the 2nd defendant signed Addendum No. 5, as part of the main contract. Addendum No. 5 increased the costs to Tshs 76,417,758.20 including labor charges. Later, the defendant declined to pay the plaintiff the amount stated in Addendum No.

5. Despite several letter written by the plaintiff to the 2nd defendant asking her to pay the claimed amount: Plaintiff’s efforts did not yield any result. At the end, the plaintiff decided to commence this suit. Page 2 of 16 Upon being served with the plaint, the defendants filed their written submission of defence and strongly disputed the plaintiff's claim and prayed for the suit to be dismissed with cost. At the Final Pre Trial-Conference, the following issues were raised by this court for the determination. i. Whether Addendum No. 5 is separate from the main contract i.e. contract No. LGA/186/2019/2020/IV/01/LOT 1 and 2. ii. Whether the plaintiff was paid or has a claim on the work done to the defendant in respect of Addendum No. 5 of the main contract mentioned in (i) above. HL Relief (s) if any parties are entitled to. The plaintiff was represented by Advocate Martin Geofrey whereas the defendants were represented by Mr. Masunga Kamihanda, the State Attorney. The plaintiffs case was built by two witnesses, namely Mr Omary Bakari Kalunda (PW1) and Mr. Bwire Sylvester Chibule. In the course of the hearing, PW1 tendered a total number of 6 Exhibits. On the other hand, Engineer Humprey Castor Samali (DW1) testified as the defendant’s sole witness. He also tendered 1 Exhibit. Starting with the first issue i.e., whether Addendum No. 5 is separate from the main contract i.e.,

contract No. Page 3 of 16 LGA/186/2019/2020/1V/01/LOT 1 and 2. Mr Omary Bakari Kalunda (PW1) testified that he is operating a business under the name of Ntina General Enterprise. He was awarded tender No. LGA/186/2019/2020/1V/01/LOT No. 1 and: 2 which was specifically for the construction of dispensaries in Maumbika and Amani Ward. He signed a the contract with the 1st defendant on 28th May 2020. He tendered the contract No. LGA/ 186/ 2019/ 2020/ IV/ 01/ LOT No. 1 and 2 which was admitted as Exhibit PE 1. He further testified that the total cost of the contract amounted to Tshs 224,961,070/=. He started work on 6th June 2020. While continuing to work he discovered there was a change of drawing that was delivered to them to work on which led to changes in equipment and shooting of the operational expenses. He reported to the 2nd defendant about the said changes, but unfortunately, there was no response. Thus, He prepared a project report for where he had reached in 2021. He called his engineer Mr. Bwire Sylvester Chibule (PW 2) to determine the exact value of the project. They discovered that they used extra Tshs 57,222,280/- for both dispensaries on equipment. In May 2021, he sent the valuation report to DED Newala for his claim. He tendered a letter dated Page 4 of 16 19/05/2021 addressed to Town Director Newala on the claim of valuation which was admitted as Exhibit PE 2. He

testified further That, after sending the variation, DED sent a team for site inspection. Thereafter, they proposed an addendum for a variation of Tshs 76,417,470/- for the material plus labor charges. He tendered Addendum No. 5 in contract No. LG A/ 186/ 2020/ IV/ 01/ LOT 1 and 2 with BQQ collectively admitted as Exhibit PE 4, The addendum did not add any other work. During cross-examination, PW1 told the Court that Addendum No. 5 formed part of the contract No. LGA/ 186/ 2019/ 2020/ IV/ 01/ LOT 1 and 2, the contract sum was amended to Tshs 286,765,823.20/=. Mr, Bwire Sylvester (PW 2) testified that the plaintiff was availed construction contract, in the course of performance there were added work amounts of Tshs 57,000,000/- and he was the one who measured the added work. He knows there was an Addendum and he was shown the same by the plaintiff. Therefore, according to his testimony, he was not involved in the process of signing the main contract or the Addendum forthat reason he doesn’t know if the Addendum was part of the contract. On the other side, the defendant's main witness, Engineer Humprey Cator Page 5 of 16 Somali (DW 1) admitted to having signed Addendum No. 5 with the plaintiff and it formed part of contract no. LGA/186/2019/2020/W/01 /LOT 1 and 2. According to him, they signed two Addendums which are Addendum No. A for the wells project which changed the value of

the project from Tshs 224 million to Tshs 210, and Addendum No. 5 for variation of materials and labor charges which changed the contractual sum from Tshs 210 million to Tshs 286 million of which there was additional of Tshs 76 million. He tendered Addendum No. 4 and 5 in respect of contract No. LGA/ 186/ 2019 2020/ W/01 / LOT 1 and 2 which were collectively admitted as Exhibit DE 1. Thus, it Is indisputable between parties that Addendum No. 5 was part of the main contract No. LGA/186/2019/2020/W/01/LOT 1 and 2, automatically it answers the first issue that addendum No. 5 was not separate from the main contract as it was part and parcel of the same. Concerning the second issue that is, whether the plaintiff was paid, or has a claim on the work done to the defendant in respect of Addendum No. 5 of the main contract mentioned in the first issue, Mr. Omary Bakari Kalunda (PW 1} testified that at the time they signed Page 6 of 16 Addendum No. 5 the work was done for 95 % and he finished the work but the defendant did not pay him: the additional amount in Addendum No, 5 which is Tshs 76,417,758/= and that is what he owes him. PW 1 also testified that he was paid through a certificate attached with BOG) {Bills of Quantity) for the work done on quantity, rate, and amount. He was paid after finishing each work in that sense he was paid in installments. He tendered some of the

certificates to prove payments made to him which are certificates No. 1,6,9 and the final certificate admitted collectively as Exhibit PE 3. Responding to cross-examination questions, PW1 told the court that the final certificate is prepared to show the final payment after work has been completed and that in the final certificate contractual sum reads Tshs.286 million. However, the paid amount is Tshs.262,892,922/= and the balance would therefore be Tshs 24,000,000/=. He responded further that he has not prayed to be paid Tshs.24,000,000/= as the remaining balance of the contract because Tshs.76,000,000/= comes from completed work done for which its certificate has not been prepared. Page 7 of 16 Conversely, Engineer Humprey Castor Sa mail (DW 1) testified I ho I before the carialion contractual sum was Tsh.224 million. In Addendum No. 5 there was variation of quantities of material and labor amounting to Tshs.76,000,000/= which changed the contractual sum to Tshs.286,000,000/=. Therefore, the revised contract sum was Tshs.286,000,000 with Tshs 76,000,000/= (Addendum 5) inclusive. He explained also the payment procedure for the work done which would require the contractor to write a letter to DED to explain the work done. Then DED forms an inspection committee which is responsible for conducting site inspections which should be satisfied with the work done as described by the

contractor in his letter. After inspection and upon agreement on the amount to be paid, a certificate that shows the work that the inspection committee has proposed for payment is prepared. Thereafter, the contractor first is availed with a certificate to confirm if it is correct and he agrees with it. If the contractor agrees with the payment amount, the certificate is sent to DED for confirmation and signature. Once DED signs the contractor also signs. One copy is issued to the contractor and another one is sent to the authorized authority for payment. Page 8 of 16 Therefore, the contractor is under obligation to ensure that the payments he receives are correct. He further testified that the plaintiff has been paid variations through certificate and so far they have paid him Tshs 262,000.000/- and the remaining balance is Tshs 23,000,000/= whereby Tshs 10,000,000/= is the retention amount and Tshs. 13,000,000/= is balanced for work that has not been finished according to contract conditions. He said the remaining amount is reflected in the final certificate which the plaintiff signed. i thoroughly perused at Exhibit PE 4. It is Addendum No. 5 which was signed between Newala Town Council (Defendant) and M/S Ntina General Enterprises (plaintiff). Addendum No. 5 introduced additional work to the original contract No. LGA/186/2019/2020/W/01/LOT 1 and 2 (Exhibit PE 1} where by the

addition works included variation of quantities and labor charges Cost amounting to Tshs 76,417,758. parties agreed that the revised amend the contract sum to Tshs.286,765,828.20, Therefore after variation, both parties agreed that the revised contractual sum is Tshs 286,765828.20 inclusive of Tshs 76,417,758. Page 9 of 16 I went through Exhibit PE 3 specifically the final certificate which according to the parties is prepared after the work has been completed. The final certificate shows the contract sum and the revised contract sum to be Tshs.286,765,828.20. It also shows the previous payments advanced to the plaintiffs which are gross Value to date. The plaintiff was issued a total sum of Tshs.273,383,060.20 but Tshs. 20,980,276.02 was retained and the amount payable to the plaintiff was tshs.252,402,784.18. In the final certificate, the defendant paid the plaintiff 50% of the retention amount which is TZS 10,490,138. Therefore, if the amount previously paid is added to the amount paid in the final certificate then total amount paid to the plaintiff is Tshs.262,892,922.19. Therefore, the amount remaining to be paid from the revised contract sum is Tshs.23,872,906/- as testified by DW 1. The plaintiff agreed to be paid Tshs.262,892,922/= and that the remaining balance of the contract is TZS 24,000,000/=. Basing on the final certificate, the amount claimed by the plaintiff of

Tshs 76,000,000/= is included in the revised contractual sum of which he has already been paid a total sum of Tshs.262,892,922/=. In that sense the amount they agreed in the main contract before the variation has been paid in full Page 10 of 16 and the additional amount in Addendum No. 5 has also been paid in large amount. The outstanding amount that the 2nd Defendant has not paid is Tshs.23,000,000/= as per the terms and conditions in the contract; that's why even the plaintiff admitted to have not prayed to be paid the outstanding amount of Tshs.23,000,000/=. Therefore, I: tail to comprehend why is the plaintiff complaining to have not been paid Tshs.76,000,000/= in respect of Addendum No. 5? It is trite law that, in civil cases, the one who alleges has a legal burden to prove the allegation. The standard of proof is on the balance of probabilities. The foundation is laid down under Sections 110 (1) and (2) of the Law of Evidence Act Cap 6 RE 2022 which state inter lia: - * ’ L Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.

2. The burden of proof in a suit proceeding lies on that person who would fall if no evidence at ail were given on either side. " In the case of Antony M Masanga vs Penina (Mama Mgesi) & Lucia (Mama Anna) Civil Appeal No 118/2014 (unreported), the Court of Appeal firmly stated that, Page 11 of 16 " It is q common know)edge that in civil proceedings, the party with legal burden also bears the evidential burden, and the standard in each case is on the balance of probabilities''. Again, in the case of Samson Ndawavya vs Theresia Thomas Madaha Civil Appeal No. 45 of 2017 (unreported), the Court of Appeal held that: - “If is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case." Based on the law and decision of the Court of Appeal, the plaintiff had an obligation to prove that the defendant had not paid Tshs 76,000,000/- that he owed him as they agreed. But he has failed to prove to the required standards that the defendant has not paid him Tshs 76,000,000/= in respect of Addendum No. 5 as he submitted his claim. Page 12 of 16 However, Section 37 of the Law of the Contract Act provides that, parties are bound to their contracts. The same position has been stated in various decisions of the Court of Appeal. See Simon

Kichere Chacha v Aveline M. Kilawe, Civil Appeal No. 160 of 2018, and Unifever Tanzania Ltd vs Benedict Mkasa t/a Bema Enterprises Civil Appeal No. 41 of 2009 (Both unreported). Therefore, in the present case, both parties are obliged to perform the terms and conditions of their contract. The plaintiff completed the work and the final certificate was issued and paid whereby the outstanding amount needed to be paid by the defendant is Tshs 23,872,906/=. But The 1st defendant told the court he has not paid the plaintiff Tshs 10,000,000/= because is the retention amount and Tshs 13,000,000/= because the work has not been finished as per the contract. The plaintiff did not counter such contention and I have perused Exhibit PE 1 which is Contract No. LGA/186/2019/2020/W/01 /LOT 1 AND 2 particularly on clause 58.2 of the general conditions of the contract which reads: "On completion of the whole works, half the total amoun t retained shall be repaid to the Con tractor Page 13 of 16 and the other half when the defects Liability Period has passed and the project manager has certified that all the defects notified by the Project Manager to the Contractor before the end of this period have been corrected." The word "defect" is defined under clause 1 of the General Conditions of the Contract as part of the work not completed by the contract. Therefore, the 2”d defendant’s argument that

work that has not been finished according to contract is recognized as a defect. The defect liability period is specified under clause 1 of the Special Conditions of the Contract to be 12 months after the final certificate date whereas clause 1 of the Genera! Conditions of the Contract provides that the period named under clause 1 of the Special Conditions of the Contract calculated from the completion date. According to the clause 41.1 of the General Conditions of the Contract if there is any defect the project manager shall give notice to the contractor of the said defects before the end of the defect’s liability period. In this case upon completion of the work, the final certificate was approved by DED on 06*h April 2022 which means the defect liability Page 1.4 of 16 period started to be calculated on the said date. Since parties agreed on the period of 12 months it ended on April 2023. The plaintiff filed this suit when the defect liability period had not expired but now the time has passed. Therefore, he is entitled to be paid the outstanding amount because If there was any defect, the 2nd defendant was supposed to give the plaintiff notice of the same before the end of the defect liability period. The 2nd defendant has not provided any evidence to prove that she adhered Io the terms and conditions of the contract to notify the plaintiff about the said defect apart from

just saying that the remaining payment has not been paid because the work is not finished according to the contract. Of course it is understandably that the matter has been dragging in court and the plaintiff agreed that he has not claimed it. Therefore, the defendant is under obligation to pay the plaintiff the outstanding amount of Tshs.23,872,906/= to also fulfill his obligations under the contract. The final issue is, to what relief are the parties entitled to? The background of the case above is clear that the plaintiff failed to prove the claimed amount of Tshs.76,000,000/=. Therefore, save for Page IS of 16 his entitlement of Tshs.23,872,906/= that is due to be paid by the 2nd defendant; the plaintiff is not entitled to any other relief (s) prayed in the plaint. All said and done, save for what I have ordered above, the plaintiff’s case is dismissed with costs. Ordered accordingly ORT R. A. EBRAHIM Judge Mtwara 19.03.2024. Page 16 of 16