reni international company ltd vs geita gold mining ltd 2020 tzhccomd 57 26 may 2020

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 168 OF 2018 RENI INTERNATIONAL COMPANY LTD......................... PLAINTIFF VERSUS GEITA GOLD MINING LIMITED.............................. DEFENDANT JUDGMENT B.K. PHILLIP, J This case arises from contract number 4501301787 (herein after referred to as "the contract"), between the plaintiff and the defendant which was signed on 18th June 2018.The contract was for the supply and installation of solar street lights in Geita township. It is alleged in the plaint that the plaintiff was engaged by the defendant to supply and install solar street lights worth Tshs. 4,200,000/= per unit for a distance of 12 kilometers both sides, that made up a total of 606 street lights. The contract was part of the Corporate Social Responsibility Projects ("CSR projects") in Geita Township financed by the defendant. Furthermore, the plaintiff alleged that he entered into contract with his suppliers of all the materials necessary for the works and paid for the same, but he ended up partly executing the contract by installing street lights in 3 kilometers only. The plaintiff alleged that he could not proceed with the implementation of the contract to its end because the defendant allowed political interference 1 from the regional political authorities which changed the terms of the contract by reducing the scope of the works, the number of street lights that were supposed to be installed and ordered installation of street lights which were of out dated technology. The plaintiff further stated that, following the above mentioned interference he found onerous to execute the contract since the defendant was demanding him to do things which were not agreed in the contract without adhering to the terms of the contract on rectification of works and /or introduction of additional works. In addition to the above, the plaintiff alleged that under the pressure of the Regional Commissioner (henceforth "the RC") and contrary to the agreement, and the expert's advice, the defendant caused another contractor to construct the foundation for the street lights at a distance of 50 meters between each other as opposed to the agreed 40 meters spacing, consequently the quality of the street lights became poor and the plaintiff could not do anything to remedy the situation. Moreover, the plaintiff alleged that the defendant advertised a new tender for the works which were already granted to the plaintiff under the contract without following the termination procedures agreed upon in the contract. It is the plaintiff's case that there was a frustration and constructive breach of the contract. Thus, in this case the plaintiff prays for judgment and decree against the defendant as follows; i. Payment of the sum of Tshs. 763,560,000/= being 30% of the contract value which would have been the profit in the contract. 2 ii. Payment of the sum of Tshs. the sum of USD 65,000.00 being amount paid to the suppliers of materials. iii. Payment of general damages as may be assessed by the court. iv. Payment of interest on the decretal amount at the court's rate of 10% per annum from the date of judgment till when the decree is fully satisfied. v. Payment of costs of and incidental to the suit vi. Any other order(s) that the honorable court may deem fit. In his written statement of defence, the defendant refuted the plaintiff's claims and stated that the contract between the plaintiff and the defendant was subject to changes and variations, thus the parties had negotiations which resulted into changing some of the terms, scope of work, specifications and the mode of implementation of the contract. The defendant denied to have allowed any interference in the works by the regional political authorities. He alleged that the regional authorities as beneficiaries of the works assigned to the plaintiff under the contract did on different occasions summon the defendant's officers and the plaintiff for the purpose of making a follow -up on the quality of the works performed by the plaintiff. Furthermore, the defendant alleged that in the course of performing his duty, the plaintiff installed defective street lights which attracted inquiry from the regional authorities. He admitted his fault and undertook to replace them with proper ones. In addition to the above the defendant alleged as follows; That the contract between the plaintiff and the defendant was neither frustrated nor terminated as alleged by the plaintiff. That the alleged alterations of the 3 scope of the works were caused by the plaintiff's poor performance of the works under the contract. The defendant disputed the plaintiff's allegation that he awarded a tender to another contractor for the works assigned to the plaintiff under contract. He contended that on the date of filing this suit and thereafter the plaintiff was still performing his duty under the contract. He maintained that he has paid the plaintiff all his entitlements under the contract and the unpaid amount if any were in the process of payment. At the Final Pre-trial conference the following issues were framed for determination by the court; i. Whether the contract Number 450130787 between the plaintiff and the defendant was subject to changes and/or variations and if so, under what circumstances. ii. Whether the defendant frustrated or caused to be frustrated the performance of the contract by allowing political interference thus amounting to constructive termination. iii. Whether there was a breach of the contract by either party. iv. To what reliefs are the parties entitled to. At the hearing of this case the late learned Advocate Dr. Masumbuko Lamwai and the learned Advocate Ms. Mary Lamwai appeared for the plaintiff whereas the learned Advocate Galati Silwani Mwantembe appeared for the defendant. Having summarized the background of the case, let me embark on the determination of the issues. Starting with the first issue, that is Whether the contract Number 450130787 between the plaintiff and the defendant was subject to changes and/or variations and if so, under what circumstances, the contract (Exhibit PI) at clause 9.1 states as follows; "9.1 The contractor shall not alter the contract except as directed in writing by the Employer's representative. The employer's Representative shall have full power by notice, in writing to direct the contractor to alter, amend, omit add to or otherwise vary any o f the works and the contractor shall carry out such variations as though the said variations were stated in the contract." By reading the contents of clause 9.1 of the contract quoted herein above, it is evident that the contract between the plaintiff and the defendant was subject to changes. That is why both counsels in their closing submissions invited this court to answer the first part of this issue in the affirmative. As regards the second part of the issue, the contract provides for the answer as it stipulates in clause 9.1, that the Employer's representative shall have full powers, by notice, in writing to direct the contractor to alter ,amend, omit, add to or otherwise vary any of the works and the contractor shall carry out such variations as though the said variations were stated in the contract. According to exhibit PI (the contract), the employer is the defendant herein while the plaintiff is the contractor. Clause 1.1.9 of the contract, defines the Employer's representative as the infrastructure Manager. However, Clause 5 of the contract provides that the Employer may also appoint a firm or individual to carry out certain duties. It follows therefore that variations in the contract could be done by the Infrastructure Manager by notice, in which he/she can direct the 5 plaintiff to effect the changes and according to clause 9.2 of the contract, the contractor has a duty to notify the employer's representative in case the variation directed to be done is likely to prevent or prejudice the contractor from fulfilling any of its obligations under the contract. Both counsels in their closing submission are in agreement that the circumstances under which variations can be effect are provided under section 9.1 of the contract, the content of which I have reproduced and analysed herein above. As regards the second issue, that is Whether the defendant frustrated or caused to be frustrated the performance o f the contract by allowing political interference thus amounting to constructive termination, Engineer Rapando Aloo, (PW2) who was the plaintiff's project manager testified in detail on the alleged frustration and interference in the contract. In his testimony in chief he stated as follows; That on 28th June 2018, while he was mobilizing his team to go to the site, he was informed by Mr. Moses Rusasa, the defendant's coordinator of the CSR project, that he was supposed to attend a meeting at the RC's office at 9.00am. He complied with the directive and upon reporting at the RC's office he found a number of people including the Municipal Engineer and Mr. Moses Rusasa. The purpose of the meeting was to re-open the negotiations for the contract. He was asked to give justifications for the charge of Tshs. 500,000/= as mobilization costs per street light. At the end of the meeting the RC instructed the defendant to mobilize youths to do all labour works including excavation, concrete works, curing and erecting lump poles. The RC made directives to the effect that the defendant had to supply cranes, cement 6 and water. Also, the plaintiff was ordered to send a project plan, excavate one pole and construct a sample for a pole base, so that youths could learn how to do the works and proceed constructing the rest of the pole bases on their own . In addition to the above, PW2 testified that the RC directed the local authority to find another supplier of the street lights for comparison of the prices and quality of the ones supplied by the plaintiff. So, the execution of the contract was ordered to be stayed pending the final decision that was expected to be made after compliance with the directives made by the RC. PW2 further testified that by that time the plaintiff had already brought all material at the site except cement. Moreover, PW2 testified that on 23rd July 2018, he attended a meeting which was convened by defendant whereby he was told to remove all costs for mobilization on the reason that other materials were already mobilized. Also, he was told to give a discount on the street lights. In response, he gave a proposal for a discount to a tune of Tshs. 3.1 Million subject to the reduction of the warranty period from two years to one year or Tshs 3.9 Million with a two years warranty. Finally the defendant accepted the discount at a tune of Tshs. 3.1 Million with a one year warranty and instructed the plaintiff to supervise the installation process done by other people. He complied with the defendant's instructions and upon visiting the site he found that they had already casted the concrete and cured it, so the plaintiff installed 73 street lights because the other contractor who was instructed to erect a sample light used one pole and 7 there was also one pole that the plaintiff erected as a sample so, in total there were 75 street lights. Furthermore, PW2 testified that on 27th July 2018, he saw a video clip in the facebook showing the RC of Geita Region inaugurating the commencement of the CSR projects in Geita with another contractor. To substantiate his assertion he tendered in Court a compact disc ("CD") in which the said Video clip was recorded, ( Exhibit P5). In addition to the above, PW2 testified that in Mid-August 2018 he was informed that the street lights they installed were not working. He went to the site and found out that the batteries were faulty. He informed the defendant the reasons behind what happened and promised to rectify the situation by changing the batteries as per the terms of the contract. It was agreed that the batteries would be changed within a period of four months. It was PW2's testimony that while the plaintiff was preparing to supply the new batteries, he received an email from the defendant instructing him to go for site visit and upon reaching the site ,he was told by the defendant to make new quotations for replacement of all 75 street lights that they had installed. He further testified that two other contractors had been invited to give their quotations for the installation of those street lights, one of them was Ms Solar IK Tanzania. The plaintiff declined to give • the quotation because he was not satisfied with the bill of quantities in the tender ( Exhibit P6). During cross examination PW2 told this court that he did not know why the RC participated at the meetings and that later on the plaintiff complained on the instructions given by the RC. PW2 also told this court that the proposal for removing some figures in the costs for mobilization was accepted by both the defendant and the plaintiff. PW1, Mr. Dipak Vassa testified that according to Exhibit PI the plaintiff was engaged to supply and install solar street lights for CSR Projects for the defendant along Nyankumbu-round about, Mwatulole round about and Cop cot -round about covering 12 KM. The project was for the supply and installation of 600 lights. The cost for one fully installed light was Tshs. 4,200,000/= and the whole project was valued at Tshs. 2,520,000,000/= VAT exclusive. According to PW1 the modus operandiof execution of the project was that the defendant would raise a Local Purchase Order ("LPO") for the supply and installation of specific number of street lights and the contractor would execute the contract according to the LPO, and would raise invoices based on the LPO. PW1 produced in court the LPO for supply and installation of 75 lights that was given to the plaintiff (Exhibit P2), PW1 supported the testimony of PW2 regarding the alleged interference in the project and the meetings that were convened for re-opening the negotiations of the contract and the engagement of another contractor. PW1 further testified that stopping the plaintiff from going on with * mobilization was a direct interference and frustration of the project. He further testified that the defendant's act of granting the works in the project to another contractor amounted to a serious breach of contract. 9 During cross examination PW1 told this court that the employer (defendant) could vary the contract by giving the other party details of the variations in writing. He told this court that in the case at hand that was not done. Answering a questions during cross examination as to whether the plaintiff did complain on what was transpiring, PW1 replied that Plaintiff did not complain since he was waiting for communication from the defendant. PW3, Mr. Saurabh Shah, in his testimony supported the testimonies of PW1 and PW2. It was PW3's testimony that the plaintiff advised the defendant to use different street lights and submitted a document data sheet ( Exhibit 9) regarding the street lights suggested by the plaintiff. That under the pressure from the local authorities the contract was amended. He further testified that he got the information about amendment of the contract and suspension of the mobilization processes from their project manager who tabled that information in the board meeting. He tendered in court the email correspondences between the plaintiff and the defendant on the proposed amendment of the contract. (Exhibits P10 and P ll collectively). During cross examination PW3 told this court that he attended the meeting at the RC's office. The meeting was not chaired by the RC and that people from the defendant's office also attended the meeting. Moreover, PW1 said that no minutes were taken for the meeting and that he was not satisfied with the things demanded by the defendant but, the plaintiff tried to accommodate them. 10 On the other hand DW 1 Erasmo Haule testified that the contract between the plaintiff and the defendant was under the CSR projects, and the beneficiary of the contract was the government. It was DWl's testimony that the contract was subject to variations and changes on the mode of performance of the contract to suit the prevailing conditions without affecting the rights of the parties under the contract. Being led by his advocate, DW1 recognized Exhibit PI as the contract between the plaintiff and the defendant. DW2, Eliakimu Kagimbo, testified that the contract between the plaintiff and the defendant was under CSR projects, and the beneficiaries of the Contract was the Government. That in the course of performance of the contract, the Government as an interested party had been monitoring the performance of different CSR projects to make sure that the same are performed perfectly according to the standards. It was DW2's testimony that the plaintiff had suggested a brand of street lights different from the one agreed in the contract, thus necessitated convening of a joint meeting between the officers from Geita Town council and the plaintiff. Since the terms of the contract had variation clause , the agreed brand was changed, consequently the distance from one pole to another also was changed which affected the total a allocated budget of the project. DW2 further testified that the change of the budget necessitated to have a meeting with the RC. According to DW2's testimony, the plaintiff's representative's Mr. Alloo ( PW2) attended the RC's meeting and had opportunity to explain to the RC the performance of the street lights. The RC wanted to see the budget and specifications of the street lights so as 11 to satisfy himself whether the suggested changes were proper and met the demands of the beneficiaries. In his closing submission the late learned advocate Dr. Lamwai invited this court to answer this issue in the affirmative. He submitted that the testimony of PW1, PW2 and PW3 as well as the documentary evidence tendered in Court( Exhibit P4- email correspondences on the variations of the contract ) and Exhibit P5 prove that there was serious interference in the contract and the contract that was executed was the one dictated by the RC and the Local Authorities . The plaintiffs advocate submitted that the directives of the RC and local authorities were adhered to despite the fact that neither the RC nor the District Authorities had power to give directives under the contract between the plaintiff and the defendant. On the other hand Mr. Gallati's closing submission is to the effect that this issue should be answered in the negative. Mr. Gallati submitted that according to the testimony of PW2 who attended the meeting at the RC's office, when cross examined on who were questioning him on the terms of the contract, he told this court that it was officers from the RC's office. Furthermore, Mr. Gallati submitted that upon being cross examined as to whether he ever resisted the questions which were amounting to re - opening of the negotiations to the contract ,PW2 said that he never raised - any concern. Mr. Gallati contended that according to the evidence adduced by the plaintiff's witnesses, it is not disputed that the contract that was signed between the defendant and the plaintiff was interfered by the Government. He contended that there is no evidence by the plaintiff that it was the defendant who caused the interference or that it was the 12 defendant who directed the officers from the RC's office to interfere with the plaintiff's performance of the contract, contended Mr. Gallati. In addition to the above, Mr. Gallati contended that what happened is that the contract between the plaintiff and the defendant was put under scrutiny of the government and both the plaintiff and the defendant were subjected to the meetings organized by the RC. Mr. Gallati submitted that the contract between the plaintiff and the defendant was entered into as a fulfillment by the defendant of its obligations under section 105 of the Mining Act, ( Cap 123) as amended by Act No.7 of 2017, as it is evidenced by the title of the contract itself which indicates that the contract was for CSR Project in Geita. Expounding more on the CSR Projects, Mr. Gallati submitted that, according to section 105 (1)(4) (b) of the Mining Act, the Local Government has a mandate to oversee the implementation of Corporate Social Responsibility action plan, thus what was done by the RC was within his mandate as per the law cited herein above. In conclusion of his submission on this issue, Mr. Gallati submitted that what happened is a frustration by the Government. He explained that his aforesaid position is based on the fact that at paragraph 6 of the plaint, the plaintiff stated that, consequently, upon the alleged interference by the government he found onerous to execute the works as per the contract and in consequence thereof, he was unable to perform the contract. From the evidence adduced and the closing submission made by both counsels, there is no dispute that there were interferences in the execution 13 of the contract by the RC and local authorities which were done in the presence of the defendant. The testimonies of PW1 and PW2 in respect of the alleged interferences were not shaken by the defendant's witnesses who conceded that there were meetings which lead to the variation of the terms of the contract. According to the testimonies of PW1 and PW2, the variations done in the contract were so extensive and in effect went to the root of the contract, in the sense that the works agreed to be performed in the contract were changed to the extent that the contract that was being executed was a complete new contract. The plaintiff instead of supplying and doing installation of the street lights , ended up being a supervisor of the works done by youths and building sample poles for the youths to learn for the purpose of doing the works in the contract on their own. It is the finding of this court that the contract was frustrated by the interferences aforesaid as testified by PW1 and PW2 because the plaintiff was stopped from going on with the performance of the contract as per the terms agreed upon in the contract. Since it was the deliberations in the meetings that caused the frustration of the contract and the same were done in the presence of the defendant's officers who participated effectively in the meetings, It is the finding of this court that the defendant caused the frustration of the contract by allowing the RC and local authorities to interfere with the fundamental terms and conditions of the contract as explained herein above, and that can be safely termed as constructive termination of the contract. I have taken into consideration the arguments raised by Mr. Gallati in his closing submissions on the supervisory role of the Local Government 14 authorities as provided in section 105(l)(4)(a)(b) of the Mining Act, Cap 123 (Henceforth "The Mining Act") as amended by the written laws (Miscellaneous Amendment) Act, 2017. For easy of reference let me reproduce the provisions of section 105 (1) (4)(a)(b) of the Mining Act; "105(1) A mineral right holder shall on annual basis, prepare a credible corporate social responsibility plan jointly agreed by the relevant local government authority or local government authorities in consultation with the Minister responsible for local government authorities and the Minister responsible for finance. (2 ) ........... N/A (3 ) ........... N/A (4) Subject to the provision o f this sectionevery local government authority shall- (a) prepare guidelines for corporate social responsibility within their localities. (b) oversee the implementation o f corporate social responsibility action plan" (c ) ........... N/A The above quoted provision of the law, in my considered opinion does not support Mr. Gallati's excuse on the interference of the contract because the laws states explicitly that the Local Authority is supposed to oversee the implementation of Corporate Social Responsibility action plan. Now, 15 the pertinent question is; does overseeing of the Corporate Social Responsibility action plan entails power or responsibility to change the terms of the contract in CSR projects? In my considered view, the answer to this question is a big "No", since the law is very specific , it talks of "supervision of the action plan" not "a project". To my understanding an action plan involves various activities/projects for a specific period, such as one year or more. A project is a specific activity which is within the action plan. A project, like the one at hand involves two parties the employer and the client /contractor. What I am trying to demonstrate here is that the RC and Local Authorities officers under their capacity as overseers of the CSR project, were not justified to interfere with the contract between the defendant and the plaintiff. In fact, it is the defendant who allowed them to interfere with the contract, since he was the one supposed to know and draw the demarcation on the responsibility of the Local Authority in the CSR projects. The arguments raised by Mr. Gallati cannot be correct since , if the local authority in its supervisory role of the action plan for CSR projects has rights / powers to change the terms of the contract under CSR projects, then there was no need of having a contract between the defendant and the plaintiff with specific terms, or else the local authority was supposed to be a party to that contract. I mean, what is the use of having a contract whose terms are subject to changes by directives of third party who is not privy to the contract? I also decline to agree with Mr. Gallati's argument that there was frustration by the Government because the interference which caused the frustration of the project was entertained and allowed by the defendant 16 who was a party to the contract as an employer and knew quite well the terms of the agreement and accepted the same. The frustration was caused by the defendant who failed to stand by the terms of the contract and was the one who was a link between the Local Authorities and the plaintiff who was implementing the contract under the CSR project. The case of M/S Kanyarwe Building Contractors ( supra) that was cited by Mr. Gallati is distinguishable from the case at hand because in the case at hand the frustration of the contract was caused by the defendant's failure to abide by the agreed terms of the contract. The defendant allowed variations of the terms of the contract which hindered the plaintiff from executing of the contract. I am in agreement with the plaintiff's advocate that this issue has to be answered in the affirmative. As regards the third issue, that is Whether there was a breach o f the contract by either party, I have pointed out herein above that the testimonies of PW 1, PW2 and PW3 are to the effect that the terms of the contract were changed to the extent that the plaintiff ended up being a supervisor of other people who were given directives to do the works. Moreover, PW3 testified that plaintiff failed to do the works because no any Local Purchase Order( "LPO" ) was issued to the plaintiff. According to PW3 ,failure to issue the LPO amounted to constructive termination of the contract. Moreover, PW1 and PW2 testimonies were to the effect that the terms of the contract were breached by the defendant. PW1 testified that the defendant invited other contractors to tender for the works that were already awarded to the plaintiff. He tendered in court the tender document 17 (Exhibit P6) which according to PW2's testimony was in respect of the works awarded to the plaintiff. He also tendered in court a CD with a video clip of the event in which the RC was doing inauguration of the installation of street lights under the CSR Project in Geita region. In addition to the above PW2 testified that some of the street lights that they had installed were not working due to the fact that their batteries were defective. He further testified that they had agreed to replace all the defective batteries. The replacement of the defective batteries was being done in accordance with the terms of the contract and the street lights were still under warranty. Upon being cross examined by Mr. Gallati PW2 told this Court that exhibit P6 was in respect of the area for the works that was granted to the plaintiff. He also said that the video clip in the CD was taken at Geita and the inauguration of the lights was done without involving the plaintiff. On the other hand DW1 testified that the plaintiff did perform the contract to the end and there was no tender that was issued in respect of the works awarded to the plaintiff. Upon being cross examined by the plaintiff's Advocate, DW1 admitted that in Geita town there is only one area with the name "Mwatulole" and the second tender that was issued was in respect of the same area where the plaintiff was required to perform his works. However, DW1 contended that the defendant did not terminate contract. 18 DW2's testimony was to the effect that the plaintiff breached the contract by supplying defective street light,though he accepted to rectify them. In his closing submissions the plaintiffs advocate invited this court to hold that it is the defendant who breached the terms of the contract by not providing another LPO after the works for first one (Exhibit P2) were finished and by issuing another tender ( Exhibit P6) in respect of the same area which was covered in the contract between the plaintiff and the defendant. Not only that the plaintiffs advocate submitted that PW1 and PW2 testimonies on the meetings that were held at the RC's office was not challenged in anyway, instead defendant's witnesses admitted that there were such meetings, though they claimed that the same were for budgetary matters but no minutes of any of the meetings to that effect were produced in court by the defendant. While making reference to exhibit P5, the plaintiffs advocate contended that the inauguration of the CSR projects with another contractor also proves that the defendant breached the terms of the contract. On the other hand, while making reference to the testimony of PW2, Mr. Gallati submitted that the plaintiff stopped working under the contract due to political interference. Mr. Gallati contended that the plaintiff abandoned their duties for things which were caused by a third party. He was of the view that since plaintiff was summoned by politicians to attend meetings which he decided to attend and did not raise any objection for the same as well as the directives given in those meetings, he cannot be heard now to complain of political interference and allege that the contract was breached. 19 As regards the second tender (Exhibit P6), Mr. Gallati submitted that DW1 testified that the second tender was for a different assignment though it was performed on the same area at the round about. He invited this court to ignore the Video clip in the CD ( Exhibit P5) on the ground that the same is not reliable having being obtained from the face book. In addition to the above, Mr. Gallati Submitted that the plaintiff breached the contract by supplying and installing defective street lights as admitted by PW1. He contended that the defendant was not in a position to issue another LPO while 40% of the street lights that were installed in respect of the 1st LPO were defective. Also, he faulted the plaintiffs decision to institute this case even before the expiry of the period for replacement of the defective batteries. In conclusion Mr. Gallati insisted that the plaintiff breached the contract by abandoning his duties for problems which were not caused by the defendant. I have passionately analyzed the closing submissions made by the learned Advocates and evidence adduced by the parties.I wish to point out that the evidence adduced proves that there were meetings which were conducted at the RC's office and the directives given after the meetings affected and changed the terms of the contract. Now , the only difference is that Mr. Gallati's position is that the meetings were conducted by a third party and if there were any negative effect, the defendant cannot be held liable for the same, whereas the advocate for the plaintiff was of the view that the defendants are liable for the results of the directives made in those meetings. With due respect to Mr. Gallati, I decline to agree with his contention that the interference in the contract were made by a third party 20 since the evidence adduced (Exhibit P7) shows that the plaintiffs officers were being invited to attend the meetings at issue by the defendant's representatives. This means that the defendant was the organizer of those meetings and actually gave his blessings to what was going on in those meetings while aware and knowledgeable of the terms of the contract. This can be seen in the email correspondences between the parties (Exhibit P4 collectively, Exhibit P10,Pll).The defendant's witnesses have not refuted the allegation that the interferences in the contract made the performance of the contract onerous and I take to it be true. From what I have stated herein above the defendant is part and parcel of what caused the contract to be onerous/frustrated. I am in agreement with the advocate for the plaintiff that the changes of the terms of the contract , as I have explained in the first issue were so extensive and amounted to the breach of the terms of the contract and led to the failure of the execution of the contract. As regards the concern raised by the defendant on installation of defective lights, I am of the view that the same cannot be termed as breach of the terms of the contract since , as per the testimony of PW2, the street lights at issue were within the warranty period and the plaintiff accepted to replace them. In my considered view Mr. Gallati's contention that the defendant's decision to stop issuing any more LPOs to the plaintiff was justified on the ground that there were defective street lights in respect of the first LPO is not correct, because the installation of defective street lights was not included in the contract as a grounds for termination of the contract. After all, the defendant never communicated 21 with the plaintiff that the LPOs stopped to be issued due to the existence of defective street lights. Not only that the plaintiff had already agreed to replace the defective street lights. As regards the concern raised by the plaintiff that the defendant issued another tender (Exhibit P6) in respect of the works awarded to the plaintiff, I find myself in agreement with the plaintiffs advocate that the second tender was issued in respect of the works covered in the contract between the plaintiff and the defendant. This is evidenced by the contents of the contract and exhibit P6 as well as the testimony of DWl.For easy of reference let me reproduce the relevant part of exhibit P6 and the contract. Section "D" of Exhibit P6 on the scope of work states as follows; Statement o f Works Supply and installation o f Solar Energy Street Lights along Mwatulole Roundabout Road at Geita Town implemented under Geita Gold Mining Corporate and Social Responsibility projects. Scope The scope o f this project entails the supply and installation o f solar street lights for Geita Town roads that covers approximately 2.5km distance along the mention road. The contractor is to provide all the materials for the installation works, install and commissioning thereof." 22 And section "D" of the contract between the plaintiff and the defendant states as follows; '!Statement o f Works Supply and installation o f Solar Energy Street Lights along Nyankumbu-Roundabout, Mwatulole-Roundabout and Copcot-Roundabout Roads at Geita Town implemented under Geita Gold Mining Corporate and Social Responsibility projects. Scope The scope o f this project entails the supply and installation o f solar street lights for Geita Town roads that covers 12km distance space at 40m on both sides o f the roads. The contractor is to provide all the materials for the installation works, deliver to site at Geita Town and commissioning thereof " ( emphasis is mine) Reading the above quoted sections of Exhibit P6 and the contract between the plaintiff and the defendant, it is clear that exhibit P6 was issued in respect of the works covered in the contract between the plaintiff and the defendant. That is a clear breach of contract as you cannot invited another tender for works already covered in the existing contract. During Cross examination DW1 told this court that there is no difference in the physical location for the works stated in Exhibits PI and P6. DW1 failed to explain before the court the reasons for bringing another tender for same works in 23 area which was covered in the contract between the plaintiff and the defendant. I have considered the arguments raised by Mr. Gallati that the Video clip in the CD is not reliable evidence to be relied upon by this court as far as the inauguration of the CSR projects is concerned. I am in agreement with him since there was no sufficient evidence on the authenticity of the Video clip in the CD. However, the evidence adduced in its totality revealed that there was inauguration of the CSR projects in Geita and the plaintiff was not involved in the same, though he was awarded the contract for the CSR projects. From the foregoing it is the finding of this court that the defendant breached the contract for the grounds explained herein above. Now, coming to the last issue on the reliefs the parties entitled to, the plaintiffs advocate in his final submission invited this court to grant all the reliefs prayed in the plaint on the ground that the evidence adduced by the plaintiffs witnesses have proved all the prayers in this case. On the other hand Mr. Gallati's final submission is to the effect that even if this court finds that the defendant is in breach of the contract, the plaintiff failed to substantiate all of his claims. He contended that the claim for Tshs. 763,560,000 which is alleged to be 30% of the contract value which would have been a profit if the contract would have been carried out to the end, is in a form of loss of profit, which falls under special damages, thus was required to be strictly proved. Mr. Gallati contended that the plaintiff has failed to prove how it could earn a profit of 30% to a tune of Tshs 24 763,560,000/=. To cement his arguments he cited the case of Masolele General Agencies Vs African Inland Church Tanzania ( 1994) TLR 192. Similarly, Mr. Gallati contended that the claimed sum of USD 65,000/= as an amount paid to suppliers of materials for the works in the contract was not proved. As regards the claim for general damages, Mr. Gallati submitted that the grant of general damages is under the court's discretion. However, he contended that for the claim for general damages to be granted the plaintiff has to prove that he has suffered loss or something which attracts the grant of general damages. Let me say on the onset that, in this case the plaintiffs witnesses have not produced any documentary evidence in respect of the plaintiffs prayer for the payment of the specific amount stated in the plaint despite the fact that the witness statement of PW1 mentions delivery notes and receipts for payment of materials. During the hearing of this case PW1 attempted to tender in evidence some of the receipts and delivery notes but the same could not be admitted following the objection raised by Mr. Gallati. I am in agreement with Mr. Gallati that special damages need to be strictly proved. In this case among other reliefs, the plaintiff prays to be paid a sum of Tshs 763,560,000 being 30% of the profit in the contract and USD 65,000/= which is the amount of money alleged to have been paid to suppliers of the materials for the works. 25 Now, the issue here is whether or not the plaintiff proved his two major claims mentioned herein above. PW1 in his testimony in chief stated that contracts like the one at issue carries a profit of 30% and came up with a sum of Tshs 763,560,000/= being 30% of the value of the contract. There is no dispute over the value of the contract, that is, the same was Tshs 2,520,000,000/= VAT exclusive. The defendants witnesses did not challenge the PWl's testimony on the alleged profit of 30% in the contract. PW1 was not cross examined on the basis of the alleged 30% profit. In my considered view, as far as the claim for loss of profit as alleged in this case is concern, the plaintiffs task was to prove the agreed value of the project and the profit expected out of the contract. The fact that the same was not challenged does not relieve the plaintiff from his responsibility to prove the same. What is missing here is the basis for the alleged 30% profit. I think the plaintiff was required to give satisfactory evidence on the basis of the claim for 30% profit. At least the analysis of the expected costs for the whole project in accordance with the bill of quantities (BOQ) could have been given to substantiate before the court on how the plaintiff was expecting to get the claimed profit of 30% of the value of the contract. The evidence Act, under section 110(1) and (2) provides clearly that " whoever desires any court to give judgment as to any legal right or liability dependent on the existence o f fact which he asserts must prove ’ those facts exist, when a person is bound to prove the existence o f any fact ,it is said that the burden o f proof lies on that persorf. A mere statement that the project would have enabled the plaintiff to get 30% of the value of the project as profit is not enough to move this court to 26 grant the same. I am in agreement with Mr Gallati that the plaintiff has failed to prove the claim for the payment of Tshs 763,560,000/=, despite the fact that he has proved that there was breach of the contract. Without prejudice to what I have stated herein above, it is obvious that the plaintiff was expecting to get some profits had it not been for the breach of the contract. Under the circumstances of this case ,1 am of the view that the plaintiff has suffered some damages and deserves to be compensated for the same . Thus, since the plaintiff has proved that the defendant breached the contract , I hereby enter judgment for the plaintiff as follows:- i. That the defendant shall pay the plaintiff Tshs. 20,000,000/= being general damages. ii. That the defendant shall pay the plaintiff interest on the decretal sum in item (i) above at the court rate of 7% from the date of judgment to the date of full payment. iii. Costs of this case shall be borne by the defendant. As regards the claim for payment of USD 65,000/= I entirely agree with Mr. Gallati that the same has not been proved. Dated at Dar es Salaam this 26th day of May 2020. 27