Rural Water Supply Sanitation Agency RUWASA Another vs Rumuli Engineering Live LIne Technology

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CIVIL CASE NO. 16838 OF 2024 RURAL WATER SUPPLY AND SANiTATiON AGENCY (RUWASA).................................. 1st plaintiff THE HON. ATTORNEY GENERAL............... 2nd PLAINTIFF VERSUS RUMULI ENGINEERING AND LIVE LI TECHNOLOG DEFENDANT MWENEMPAZI, J. The 1st plaintiff is a legal entity established under the Water Supply and Sanitation Act, No. 5 of 2019 mandated for development and sustainable management of rural water supply and sanitation projects and provisions of water supply and sanitation services in rural areas; and the 2nd plaintiff is the Chief Legal Adviser of the Government of all legal matters and a necessary party to this suit. Together as per operation of law are suing the defendant for payment of Tshs. 63,887,965. 78(Tanzania Shillings Sixty - Three Million Eight Hundred Eight Seven Thousand Nine Hundred Sixty- 1 Five Seventy - Eight Cents) being payment advanced to the defendant for construction of Tambazi A & B Water Supply Scheme at Nsimbo, Katavi Region in Tender No. AE/102/2021 - 2022/KTV/W/09 and Extension of Milala Water Schemes (contract No. AE-102/2021 - 2022/KTV/W/15). According to the plaint drafted under Order XXXV of the Civil Procedure Code, [Cap 33 R.E 2022] on the 17th day of April, 2022 the 1st plaintiff signed two contracts with the Defendant for construction of Tamazi A & B Water Supply Scheme at Nsimbo, Katavi Region, contract No. No. AE/102/2021 - 2022/KTV/W/09 and Extension of Milala Water Schemes (contract No. AE-102/2021 - 2022/KTV/W/15). The 1st plaintiff had paid the defendant an advance payment of Tshs. 91,623,449.62/=. On the 11th day of January, 2023, the defendant wrote a letter with reference No. RELT/RUWASA/KTV/EXTN/0018 to the plaintiff with the intention to terminate the contract on reasons that the company has encountered financial crisis, and the rise of costs of materials comparing with what was estimated in the projects. The 1st plaintiff convened a meeting on 18th February, 2023 with the intention to amicably settle the problem; and the meeting had an agenda 2 to discuss and craft how the defendant will exit the project and refund the advance payment made by the 1st plaintiff to the defendant. In the meeting it was agreed that the defendant will exit the project and refund the advance payment paid by 1st plaintiff to the tune of Tshs. 63,887,965.78/= After deducting Tshs. 27,735,483.84/= the money obtained from material procured and work done as per final account report of construction. As a result, a deed of settlement was deduced and signed on the 23rd February, 2023 between the 1st plaintiff and the defendant. It was further agreed that the defendant shall pay the settlement sum of Tshs. 63,887,965.78 (Tanzania Shillings Sixty - Three Million Eight Hundred Eight Seven Thousand Nine Hundred Sixty- Five Seventy - Eight Cents) in three instalments from 5th March, 2023 to 5th May, 2023 according to the following scheduled: 1. 1st instalment, payment of Tshs. 21,295,988.59/= on or before 5th March, 2023. 2. 2nd instalment, payment of Tshs. 21,295,988.59/= on or before 5th April, 2023. 3 3. 3rd instalment, payment of Tshs. 21,295,988.55/= on or before 5th May, 2023. The defendant has breached the agreement reached on the 23rd February, 2023 between the 1st plaintiff and the defendant. In efforts to recover the money, the 1st plaintiff has, according to the plaint, sent a number of reminders which has ended up to be a futile exercise. The 1st plaintiff filed a suit Civil Case No. 8/2023 in this court against the defendant which was withdrawn on the 4th April, 2024. She had leave to refile a fresh suit upon compliance to the legal requirement. There are a number of orders which have been prayed for in the plaint. It is on record that the defendant has never applied for leave to defend as per Order XXXV Rule (1) of Civil Procedure Code, [Cap. 33 R.E.2022]. On the 13th November, 2024 the counsel for the 1st plaintiff and 2nd plaintiff prayed to proceed with the suit under Order XXXV Rule 2(2) (c) of the Civil Procedure Code, [Cap. 33 R.E.2022]. The counsel prayed that this court makes a finding that the allegations contained in the plaint are deemed to have been admitted and a judgment be entered in favour of the plaintiff. 4 As provided under Order XXXV Rule 2(2) of the Civil Procedure Code, [Cap 33 R.E 2022], that where a summary suit is not defended, the allegations contained in the plaint are deemed to be admitted. According to the case, CRDB Bank Limited Vs. John Kagimbo Lwambagaza [2002] T.L.R. I17. “The purpose of Order XXXV: Summary Procedure ‘is to enable a plaintiff to obtain judgment expeditiously where the defendant has in effect no substantial defence to the suit and prevent the defendant from employing delaying tactics and, in the process, postpone the day of reckoning. I am of the settled view that Order XXXV is seif- contained in so far as it relates to suits stipulated there under” As to the reliefs, it was decided in the case of the Hon. Attorney General and the Board of Trustees of National Social Security Fund Vs. Capstone Foundation Limited, Civil Case No. 25785 of 2023, High Court of Tanzania at Dar es Salaam, citing the case of Paul Massawe and two 5 Others Vs. Access Bank Tanzania Limited, Civil Appeal No. 39 of 2014 (Unreported) that: “It is settledthat reliefs prayed for in a summary suit mustbereliefsavailableundersummaryprocedure”. In the case of Paul Massawe and two Others Vs. Access Bank Tanzania Limited, (supra) it was observed quoting a statement at page 3311 of Mulla, the Code of Civil Procedure that: “The reliefs prayed for in a summary suit must be reliefs available under summary procedure; that it is based on a written agreement or a negotiable instrument as otherwise provided for by Order 37 of the Court of Civil Procedure (equivalent to our OrderXXXV)" According to the Deed of Settlement of Amicable Settlement Exit, paragraph 3, the settlement amount is Tanzania Shillings Sixty - Three Million Eight Hundred Eight Seven Thousand Nine Hundred Sixty- Five Seventy - Eight Cents (Tshs. 63,887,965.78) 6 I therefore proceed to enter summary judgment in favour of the 1st plaintiff as follows: 1. That the defendant is ordered to pay the sum of Tshs. 63,887,965.78/=(Tanzania Shillings Sixty - Three Million Eight Hundred Eight Seven Thousand Nine Hundred Sixty- Five Seventy - Eight Cents) being specific damages which is the sum agreed in a Deed of Amicable Settlement Exit dated 23rd February, 2023. 2. Payment of interests at the court rate of 12% on the awarded sum from the date of judgment to the date of full satisfaction. 3. Costs of this suit to be borne by the defendant. It is ordered accordingly. Dated at Sumbawanga this 3rd day of December, 2024 T.M. MWENEMPAZI JUDGE Judgment delivered in judge’s chamber this 03rd day of November, 2024 in the presence of the parties. 7 T.M. MWENEMPAZI JUDGE 8