SINYOMA CO

Page 1 of27 IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL CASE NO 102 OF 2014 BETWEEN SINYOMA COMPANY LIMITED---------------------------- PLAINTIFF VERSUS BULYANHULU COLD MINE LIMITED --------------------- DEFENDANT JUDGMENT Dates; 30/7/2015 & 25/2/2016 SQNGORO, J On the 8/5/2012, Sinyoma Company Limited, the Plaintiff, signed Purchase and Transport of Scrap Metals Sales Agreement with Bulyanhulu Gold Mines Limited, the Defendant to collect, buy; transport and disposal of scrap materials from the Goldmine to the Nominated Area. While the contract work was in progress, the Defendant issued a notice of termination of contract, and subsequently, terminated the contract with Plaintiff. In view of the termination of the contract, the Plaintiff instituted the present suit, against the Defendant claiming that there was a breach of contract, and prayed the following orders and reliefs; Page 2 of 27 a) Payment of special damages amounting to Shs 2,512,902, 000/- and United States Dollars 552,400. b) Payment of deposit balance amounting to Shs 57,124,000/=. c) Interests, on (a) and (b) above the rate 20% of Tanzania Shillings and 12% of the United States Dollars from the date of termination of the agreement to the date ofJudgment. d) General damages for breach of contract as the court may assess e) Interests on the Decretal sum at the rate of 7 % from the date of Judgment to the date of final payment; and f) Costs In response to the Plaintiff claim, the Defendant filed a Written Statement of Defence, and opposed all Plaintiff claims. Further, the Defendant pointed a finger to the Plaintiff as the one who contravened the terms of the contract. He claims to have exercised his contractual right, of terminating the contract. The Defendant firmly insisted that, is not contractual liable to pay any damages, and prayed for the dismissal of the suit with costs for lack of merit. When the suit was called for hearing of the suit, the Court in consultation with the parties framed up four issues, as issues for determination. The Agreed issues are as follows; 1. Whether the Plaintifffulfilled condition precedent for necessitation of valid contract. Page 3 of 27 2. whether by terminating the contract the Defendant was in breach of the contract 3. If the answer is in affirmative on issue No 2 has the Plaintiff suffered any loss. 4. What reliefs are the parties entitled too. In view of above, the Plaintiff's suit was heard, and concluded on the basis of the above-mentioned mentioned four agreed issues. During the hearing of the suit, the Plaintiff was represented by Mr. G. Mnyele, the Learned Advocate; where as Defendant was represented by Mr. Alex Mngogolwa, Learned Advocate. In support of his claims, the Plaintiff's company called Timothy Daniel Kilumile, the director, and shareholder of the company who testified as PW1. Led by Mr Mnyele, PW1 told the court that, is adopting all what is contained in his recorded witness statement, and requested the court to consider it, as part of his testimony. Further he briefed the court that, his company entered into agreement with the Defendant Company to collect, buy, and transport of scrap material from Bulyanhulu Gold Mine to their yard. Page 4 of 27 In support his argument, PW1 tendered the Agreement which had the title of "African Barrick Gold Purchase, and Transport of Scrap Materials Sales Agreement Between Bulyanhulu Gold Mine Limited (Company) and Sinyoma Company Limited (Buyer) BGML/2012/020" which was admitted as Exhibit Pl. Furthermore, the witness said after they complied with the terms of the contract terms, through email letter they were introduced to Mr. Korodias Shoo to be their supervisor, and they started the work. To substantiate that, they were introduced to Mr. Shoo as their supervisor; PW1 tendered the email letter from the Defendant, which was admitted as Exhibit P2 PW1 then testified that in order to perform the contract, the Plaintiff Company, hired four trucks for carrying and transportation of scrap metals, undertook repair and maintenance of the trucks, paid for insurances covers of hired trucks, and paid for insurance covers to cover other agreed risks. The witness also said they even hired Yards to store scrap metals at Nyakato, and Usagara. Also, PW1 told the court that, the Plaintiff Company complied with the environmental, and safety regulations, stipulated in the contract, and secured permit from the National Environmental Management Council which authorised them to carry the business of collecting scrap metals from Bulyanhulu Gold Mine. Page 5 of 27 To prove that, the Plaintiff's company complied with environmental, and safety regulations PW1, tendered a permit No NEMC/MZA/12/Vol 1/11 from NEMC which was admitted as Exhibit P9. PW1 then said, after the Plaintiff Company complied with the terms and condition of the contract, they purchased scarp metals from the Defendant, and sold them to Sayona Company, and realised steady income and profits from sale. He then maintained that, despite the fact that, they complied the conditions of the contract, Defendant on the 7/12/2012, wrongly terminated the contract and ultimately caused them to suffer losses of costs they incurred in compliance with the terms of contract, and losses of their earnings. To support his argument on termination of the contract, PW1 tendered the Defendant's Notice of Termination dated 7/12/2012 with its Annexure "A" and were collectively admitted as Exhibit P13. Annexure "A" contained conditions which Defendant claims were breached by the Plaintiff. Allegations of none compliances were in respect clauses 24 and 25 of the Contract which required the provisions of insurance covers for (i) Workers Compensation, and Page 6 of27 Employment Liability Insurance , (ii)Public Liability, (iii) Insurance of Motor Vehicles, and (iv) and insurance of equipments. Also, to substantiate the point that, the Plaintiff's company incurred costs in order to comply with the terms, and condition which are now have turned into losses following the termination of the contract, PW1 tendered; receipts of insurance premiums which the company paid , receipts of costs for repair, and maintenance of motor vehicles, and receipts of costs which they hired Yards. The receipts and pro-forma-invoices of repair and maintenance were collectively admitted as Exhibit P 4. Also, receipts for insurance premiums of hired trucks were collectively admitted as Exhibit P5. Then to prove that, the Plaintiff Company hired a Yard for keeping scrap metals at Usagara Area Misungwi District the witnesses tendered a Lease Agreement dated 26/6/2012 which was admitted as Exhibit P7. To prove that, the Plaintiff hired a Godown at Nyakato for storage of scrap metals, the witness tendered a Lease Agreement which was admitted as Exhibit P8. More, to support an assertion that, Plaintiff's company performed part of its contract, and procured scrap metals, from the Defendant's company , PW1 tendered an invoice receipt No BULY Dec 06/2012 which was admitted as Exhibit P.19. Page 7 of27 Further, to prove that, the Plaintiff's Company received income arising from sale of scrap metals collected from the Defendant's Gold Mine, PW 1 tendered a receipt of sale of scrap metals from Sayona Company which was admitted as Exhibit P18. Finally, PW1 told the court that the Defendant's company act of terminating the contract was in a breach of contract, and is contractual liable for the loss which Plaintiff suffered. After, PW1 testified the Plaintiff called Colodias Shoo who testified as PW2. In his testimony he briefed the court that, has recorded a witness statement, and would like the court to consider it. The witness then said was an Environmental Manager at the Defendant's company and was a supervisor of the Plaintiff company in the work of collecting and transporting scrap metals from the Defendant's mine. Also, the witness also said, as a supervisor, he scrutinised medical certificates of Sinyoma Employees, who were assigned to collect scrap metals in the Mine. To prove that, PW2 tendered a medical certificates of some of the employees and were admitted as Exhibit P22. He then elaborated that, the Plaintiff's company comply with the terms of reference for the Contract and had approved permit from Page 8 of 27 by National Environmental Management Council (NEMC) which shows they comply with environmental and safety regulations. On performance on the contract, PW2 informed that, court that, Plaintiff's company was collecting and transporting scrap metal to the agreed yard, and they made several trips. Finally the witness informed the court that, the Plaintiff's company complied with the terms of the contract. After PW2 gave his testimony, the Plaintiff called Peter Kusamba who testified as PW3. In his testimony PW3 said he also recorded a witness statement and wanted the court to take it into accounts. Further the witness told the court that, the Plaintiff company did not commenced their contractual work as per agreed schedule, because they were completing training of their workers, completing insurance processes, and there was a delay in hiring of trucks, and in securing environmental permit from National Environmental Management Council, (NEMC). On sales of scrap metals, PW3 briefed the court that, per month, the Plaintiff 's company was transporting and selling about 16 trips of scarp metals to Sayona Company. He then Finally, the said the Plaintiff ' contract was wrongly terminated by the Defendant, and the company suffered losses. Page 9 of27 After, PW3 gave his evidence the Plaintiff's closed his case, and the Defendant called David Mzaligo who testified as DW1. Led by Mr. Mgongolwa, DW1 informed the court that has recorded his witness statement and would like the court to consider it. Further the witness told the court he does not have a document to tender as exhibit, and was ready to be crossing examined on the basis of his statement. While being cross examined by Mr. Mnyelee, DW1 told the court that, is a Lawyer, and Advocate who has been employed by the Defendant's company. Then the witness told the court that, he knows about the contract of Purchase, and Transportation of scrap metals signed by Plaintiff and Defendant. Also, he stated that his duty was to make follow up of contract implementation. He then clarified that, the contract was being governed by the terms of Tender which was awarded to the Plaintiff. He then firmly stated that, from their assessment, the Permit issued to the Plaintiff by the National Environmental Management Council was doubtful because, it bears a same date of 25/7/2012 when the application for environmental permit was made The witness said it Page 10 of 27 was not normal for the Application of the permit, and the permit, to bear the same date. The witness then clarified that, under the terms of the Agreement, the Plaintiff's company was supposed to secure the environmental permit before the signing of the contract, and before starting of the contractual work, but that, was not done. He insisted that, the blame for none compliance of the terms of the contract is on the Plaintiff's company for failure to secure environmental permit before signing contract. On performance of the contract, DW1 informed the court that, the Plaintiff contravened clauses 23 and 24 of the Contract which required the Plaintiff to furnish insurance cover from reputable insurance companies, but until the moment the contract was terminated there was no insurance policies submitted to the Defendants Company as required by the contract. On condition for insurance covers, DW1 elaborated to the court the work of collecting scrap metal was risky, and that, is the reasons Defendant, requested the Plaintiff's company to take insurance covers to cover certain risks. Page 11 of 27 DW 1 then said another none compliance, is that, the Plaintiff company instead of furnishing insurance covers which covers risks of the Plaintiff, the company presented to the Defendant, insurances which were in the name of Obedi and Daniel which do not risks of the Plaintiff. He then said that, such insurance covers in the name of other people, do not cover the risks of Plaintiff's company. So that, was another none compliance of the terms, and conditions of the contract. Another condition, under the contract is that the Plaintiff was required to have his own Yard of storing collected scrap metals. But the Defendant came realise later that, the Plaintiff was wrongly using Yards leased from other people to store scrap metals. He explained that, was contrary to the terms of contract which required Plaintiff to use his Yard. Finally, DW1 rested his testimony by stating that, their legal section after conducting investigation on the implementation of the contract, they and realised that, there were non compliances on the part of the Plaintiff on insurances requirements and on the yards used in storage of scrap materials. The witness said those are the reasons lead to termination of the contract because it was not enforceable. DW1 closed his testimony and Defendant closed his defence. Page 12 of 27 After that, Counsels from both sides with the leave of the court presented their written final submissions. On his part Mr. Mnyelee, for the Plaintiff submitted that, the Plaintiff claim is based on breach of contract which was signed on the 8/5/2012. He then explained that, from Defendant's sides of the story, it appears the contract was terminated on the ground that, the Plaintiff was using Usagara Yard which was not approved in a Tender document. He then submitted that, the termination of contract was not proper because, the contract work was not based on Tender document and there was no tender which was awarded to the Plaintiff. The counsel argued that only document which governed the contract was a contract signed by the parties on the 8/5/2012. Further, the Plaintiff's Counsel submitted that, there was no condition inserted in the contract which excluded the use of Usagara Yard, which was inspected by the Defendant's officials. It was the views of Mr. Mnyele that, there was no basis of rejecting the use of Usagara Yard which was inspected and approved by the Defendant's officials Page 13 of 27 The Plaintiff's Counsel then faulted the Defendant's action of terminating the contract by saying even if there were none compliances on the part of the Plaintiff, under the contract there was a need of notifying the Plaintiff to rectify the alleged defects, and breaches prior to termination of the contract. Finally Mr Mnyelee argued that, there was no one compliances which warranted termination of the contract, so the Defendant wrongly terminated the Contract. The Counsel rested his submission by arguing that going with the Plaintiff evidence, and the Plaintiff's claim of breach of contract has been proved on the balance of probability. He then prayed for judgment with costs in favour of the Plaintiff. On his part, Mr. Mgongolwa, Learned Advocate for the Defendant, he submitted that, under the terms of the contract, the Plaintiff was supposed to furnish the Defendant with three types of insurances covers which are (1) liability of his employers for statutory compensation, (2) motor vehicle insurance of not less than USD 500,000, and (3) Public liability insurance. But the Plaintiff failed to submit to the Defendant three types of insurance cover which was a pre-condition to the contract and that failure contravened clause 24 of the Contract. Page 14 of 27 The Counsel then submitted that, the Plaintiff's failure to fulfil the insurance conditions stipulated in Contract, amounted to breach and it compelled the Defendant to act on Clause 4 (a) of the Contract which dictates, that, failure on the part of the Plaintiff to fulfil the conditions of the contract is breach which entitles the Defendant's company to terminate the Contract. Another point argued by Mr. Mgongolwa was that, upon signing contract, the Plaintiff mislead the Defendant by informing him that, the Yard which will be used to keep scrap metals is situated at Nyakato Industrial Area, and but he wrongly Usagara Yard which was unknown to the Defendant The Counsel submitted that, by using Usagara Yard, the Plaintiff breached the terms of the Contract, which required the Yard for keeping scrap metals be prior approved by the National Environmental Council, and there was no prior approval. It was the view of Mr. Mgongolwa that, the use of Usagara Yard contravened clause 13 of the Contract, and triggered termination. Also, on motor vehicles used under the contract , Mr Mgongolwa pointed out, that the contract required the Plaintiff to own his motor vehicles, and insurances policies which cover his risks stated in the contract. Page 15 of 27 But the Plaintiff was wrongly using hired motor vehicles in collecting scrap metals, and motor vehicles insurances cover which were furnished, did not cover the risks of the Plaintiff's. So, that was also none compliance on condition set on insurance conditions, on the part of Plaintiff. Defendant's Counsel then firmly argued that it was proper for the Defendant to terminate the Contract. Regarding Plaintiff's claim of losses and damages the Defendant Counsel countered them by saying are baseless because, its the Plaintiff who failed to full fill the terms and conditions of the contract, and that, lead to termination the contract. It was part of the Defence Counsel that bearing there was none compliances of the contract on the part of the Plaintiff, Defendant had a contractual right to terminate the contract. Finally, Mr. Mgongolwa prayed for dismissal of the suit for lack of merit with costs in favour of the Defendant. The court has considered the Plaintiff claims, Defendant's defence and submissions from both sides and finds all 4 issues agreed are relevant for determination of the suit. In view of the above, I will consider one issue after another. Turning to the first issue of whether the Plaintiff fulfilled condition precedent for necessitation of valid contract, I find the key question Page 16 of 27 for determination is whether or not the Plaintiff performed requisites steps for the formation of proper contract. In addressing the above I noted from the testimony of PW1 and exhibits which were admitted in court. That, the Plaintiff performed several activities in connection with the performance of contract. The performed activities were as follows; a) on the 25/7/2012, the Plaintiff secured a Permit to Collect Scrap Metals Reference NEMC/MZA/12/VOL l/II -Exhibit P.9 b) On the 23/8/2012 the Plaintiff presented certificate of medical fitness of his employees to the Defendant's Company for inspection which were admitted as Exhibit P22. c) On or between 31/7/2012 the Plaintiff hired trucks and procured Insurance Covers for Trucks from Zanzibar Insurance Corporation, Serial No 12594 of 31/7/2012 Niko Insurance Corporation Cover B 138150 of , Jubilee Insurance No 03904466, and 4629099 for trucks which were collectively admitted as Exhibit P5. d) Also on the 24/8/2012 the Plaintiff procured Insurance Cover for Public Liability of USD 400 to cover liability of USD 100,000 and Two Workman compensation insurance policy from Alliance Insurance Corporation which were collectively admitted as Exhibit P6. e) That, on the 1st July, 2011 the Plaintiff entered into lease agreement with Nyakirangani Construction Company Ltd to rent a Godown for storing/keeping scrap metals, at the rental price of shs 200,000 per months. f) Then , on the 6/12/2012 Plaintiff's company paid a sum of shs 7,150,000 to the Defendant to purchase mixed scrap metals of 28,000kgm and was issued with Tax Invoice and Scrap Removal Permit by the Defendant which were collectively admitted as Exhibit 19. g) Also, on the 26/6/2012 the Plaintiff Company hired trucks for transportation of scrap metals, and agreements for hiring of motor vehicles which were admitted as Exhibit P3. Page 17 of27 I have carefully considered the above -mentioned measures taken by the Plaintiff in implementation of the terms of the contract, I am persuaded that the above mentioned activities were done in connection with the implementation of the said contract. In view of the above, I am persuaded that, the Plaintiff fulfilled condition precedents for necessitation of valid contract. That, court finding that, the Plaintiff fulfilled condition precedents for necessitation of valid contract is supported by the fact that, on the 6/12/2012 Defendant company sold to the Plaintiff's company 28, 000 Kilograms of scrap metals and was issued with Tax Invoice, and Scrap Removal Permit signed by Mwesigwa, Mugusha and Hashim Haruna for the Defendant. The Tax Invoice and Permit were collectively admitted as Exhibit 19. More, the court find the concept of " Valid Contract" is not even disputed because it may inferred from paragraphs 1 and 3 of the Notice of Termination- signed by Deodatus Mwanyika acknowledges the existence of the contract in Exhibit P13. In deed in Paragraph 1 of Exhibit P13 the Defendant states; "I refer to the above contract between Sinyoma Company Limited (Sinyoma or buyer) and Bulyanhulu Gold Mines Ltd" ' Further in paragraph 3 of Exhibit P13 Defendant states that, they reviewed the contract. Page 18 of 27 So, based on the above mentioned evidence, exhibits, and Defendant reference to the contract made in Exhibit P13 I repeat that, the Plaintiff's fulfil the condition precedents for necessitation of valid contract. I answer issue No 1 in affirmative. Moving to the second agreed issue of whether or not by terminating of the contract, the Defendant breached of the contract, I find that, issue may be resolved by ascertaining what matters were agreed under the contract may be the basis of termination. In addressing the above I noted from Clause 4 of the Contract has stated issues which once are contravened may give right to the Defendant to terminate the contract. The agreed issues included Policy which in my view includes provisions of insurance covers. Indeed Clause 4 (a) states The contractor's failure to comply with the Companies Policies and Rules shall for the purpose of this Agreement be deemed to be a substantial breach entitling the company to terminate in accordance with the Default and Termination Provisions of this Agreement. Going by wording of Clause 4(a) of the Contract, I find it enables the Defendant to terminate once there is substantial breach. Also, clauses 24 and 25 set a condition to Plaintiff to make provision of insurance cover on (i) workers compensation and Employers liability insurance of not less than USD 100,000 (ii) public liability insurance of USD 100,000 (iii) insurance of motor vehicles not less than USD 500,000 (iv) insurance of equipment not less than its full Page 19 of 27 replacement value. It appears to me since there were insurance premiums which were set in Dollars, and a condition which was not fulfilled, I am of the settled mind that, there was none compliance on the terms of the contract in particular insurance premium which and gave contractual right to the Defendant to terminate the contract. And indeed the Defendant's notice of termination brought the contract to the end. But the critical issue for consideration is whether or not every termination of contract amounts to a breach of contract It is my view that, termination which is sanction by the contract, may not necessarily amount to breach of contract because it is approved by the contract itself once there is a proof of none compliance of the terms of condition of the contract. But as you will soon realised that under the Section 73 of the Law of Contract, Cap 345 R.E [2002] termination of any contract" has also its legal consequences. On the foregoing reasons I decide that, Defendant's action of terminating the contract was not a breach of contract. Instead the Defendant was exercising his right of termination under the contract after finding furnished insurance premiums did not correspond with Clause 24 and 25 of the Contract. Situation would have been differently if the insurance premiums which were paid would have been like the one stated into the Contract. Page 20 of 27 Before concluding on issue No 2, I will remark that even termination of contract where a party exercises his own rights under the contract, has its own legal consequences under the law of contract as we shall see in the due course. So I answer the issue No 2 by finding that there was no breach of contract. Turning to the 3rd issue whether the Plaintiff suffered any loss, I would like to point out that, the testimony of PW1, and Exhibits P4, P5, P7 and P8 ,and P19 to mention few established that Plaintiff incurred costs of hiring trucks, maintenance of trucks, payment of insurance premiums , hiring of Yards, processing of environment permit, and for certification of medical fitness of his employers. Exhibits such invoices, receipts and vouchers to support incurred costs were admitted proved costs were incurred in fulfilling the contract. Bearing in mind that, the Plaintiff incurred costs in discharging his contractual obligation, and the contract was broken by the Defendant, under the umbrella of "Termination" it follows therefore under Section 73(1) and (2) of the Law of Contract Cap 345 [R.E 2002] is entitled to compensation for loss which he directly suffered as a party who has been affected by termination of the Contract. Indeed Section 73(1) states that; Page 21 of 27 (1) When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. And Section 73(2) of the Cap 345 states that; (2) The compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Going by the above-mention cited provision of Sections 73 (1) and (2) of the Law of Contract, Cap 345 [ R.E.2002] I decide the 3rd Issue by finding that the Plaintiff suffered losses and damages arising from the Defendant's action terminating the contract, and is entitled to compensation of loss, and damages naturally arising from the termination of the Contract. Moving to the fourth, and last issue of what relief's are the parties entitled too, I have revisited the Plaintiff prayers in the Plaint and find there is claims for special damages, general damages, reimbursement of money paid as purchase price for scrap metals, interests, and costs of the suit. On the claim of special damages, the court noted from paragraph 16 (a) of the Plaint, that the Plaintiff is claiming special damages of Tshs 2,512, 902,000 and USD 552, 400 as a remedy for breach of contract. I revisited law relating to granting of special damages and find it is a requirement of that "special damages" must be strictly be proved. This is a legal position stated in the Court of Appeal Page 22 of 27 decision in the case of Stanbic Bank (T) and Abercrombie & Kent, Civil Appeal No 21 of 2001 , Arusha Registry where it was stated that; The law is that, special damages must be specifically pleaded and strictly proved" Further, the court relying on the words of Lord Macnaghten in the case of Bolag versus Hutchson [1950] AC 515 at 525 it stated that What we accept as correct statement of the law that, special damages are such as the taw will not infer from the nature of the act. They do not follow ordinary course. They are exceptional in their character, therefore the must be claimed and proved strictly. Also in the case of Zuberi Augustino versus Ancient Mugabe f1992] TLR137 at P139 the Court ofAppeal stated that; It is trite law, and we need not cite any authority, that, special damages must be specifically pleaded and proved Considered the above stated legal positions stated in the above­ mentioned and circumstances under which special damages may be granted the guestion before me is whether the Plaintiff claim of special damages of 2,512,902, 000/= and United States Dollars 552,400 as has been strictly proved. In addressing the above, I reviewed the Plaintiff's evidence and the court did not find credible and convincing evidence which strictly proved the Plaintiff claim of special damages on the, sum pleaded in paragraph (a) of the Plaint. Page 23 of 27 Also, on bundles of receipts of maintenance of trucks, I revisited them but none of the witness was called by the Plaintiff from the Shikamoo Technical Services of Dar es Salaam or any garage to prove if alleged maintenance and purchase mentioned in Exhibit P4 and others were done in their garage or shop. In the absence of such testimony the claim remained unsubstantiated. So I find costs on the maintenance of motor vehicles were not strictly proved. Likewise, the court did not find credible and convincing evidence on sale projection anticipated sale of scrap metals from Sayona Company pleaded in paragraph 13 (IV) and (V). It seems to me in supporting anticipated sales of shs 1,506,120,000 explained in Exhibit 15, someone from Sayona was supposed to appear before the court and testify in support anticipated sale. In the absence of such testimony the claim remains unsubstantiated. So I find costs on the maintenance of motor vehicles were not strictly proved. More the court finds anticipated sales or cash flow is based becomes more realistic if it is based on tonnages of scrap metals which were agreed upon by the parties to supply. But in the terminated contract there was no agreement on the exact tonnage of scrap metals which were supposed to be supplied. So the Plaintiff anticipated cash flow and sales are too speculative and were not strictly proved, and it fails. Page 24 of 27 Also, on the claim of net profit of shs 952,255,000, I find not based on agreed tonnage of scrap metals to be supplied, because there was no such agreement, therefore it was based on guess works. So the two claims of net profit of shs 952,255,000 and shs 1,506,120,000 were not strictly proved, and they fail. Also, on Plaintiff claim that on lease of Ex Kauma Yard at the costs of USD 252,200, I did not find credible and convincing evidence which strictly established that, Ex- KAUMA Yard was lone of the Yard parties agreed in the Contract to be used as storage of scrap metals from the Defendant's company. Another shortfall is none of the witness was from Ex Kauma proprietor to prove Plaintiff's tenancy in the premises. In the absence of such testimony the claim remains unsubstantiated. So the claim was not strictly proved an it fails. Further, the court did not get credible and convincing evidence of hired baling machine and its costs of USD 300,000 which was pleaded on paragraph 13(1) of the Plaint. Also there is no credible evidence of Gas Cylinders were been pleaded at Paragraph 13 (iii) of the Plaint. So also the claims fail for lack of credible evidence. So to conclude on special damage, I find there is not strict proof of special damages claimed in the Plaint, and the claim fails. Page 25 of 27 Reverting to monies spent and incurred by the Plaintiff in the execution of the Contract which in my view may be compensated in terms of Section 73(1) and (2) of the Law of Contract Cap 345 [R.E 2002] it is important to state that compensation is on costs directly incurred in the implementation of the contract So the incurred costs supposed to compensated are (l)cost incurred in securing Environmental Permit, shs 300,000, (2)reimbursement of 6 months Rental Costs for hiring Nyakato Godown awarded sum is shs 12,000,000, (3) Reimbursements costs of hiring of trucks shs 12,000,000 (4)Reimbursement costs of medical certification of personnel shs 1,200,000 ,as Exhibit P22, (5)Insurance premiums for truck shs 5, 790,000/= ,(6)Insurance Premium in Public Liability USD 400.(Four Hundred USD only) , (7)Two Public Liability insurance covers Tshs 776,000/= , and (8) refund of the deposited remaining balance of Shs 57,124,000/= which was deposited to the Plaintiff as advance sum for purchase scrap metals if the amount has never been repaid to the Plaintiff by the Defendant. On the claim for damages, the Plaintiff has requested the court to assess. In doing so, I noted that there is evidence from PW1 that, the Plaintiff reasonably was expecting his business with the Defendant will continue for quite some time. Page 26 of 27 Also, the court noted had recruited his workers who then stationed at the mine and were paid salaries and other remunerations for doing the contract job. Also the Court noted that Plaintiff was expecting to realise profits on each sale. With the referred business which he has under the contract, reasonably he is entitled to the general damages. The court has assessed the general damages to the sum of shs 150,000,000. Moving on interest I order that the Decretal sum attract interests of 8 % per annum from the date of filing the suit to the date of Judgment, and an interest of 12% from the date of Judgment to the date of full payment of the Decretal sum. Finally, the Plaintiff suit partly succeeds with costs as explained above. The Right of Appeal is fully explained to the parties. Dated at Dar es Salaam this 24th day of February, 2016 H.T.SONGORO JUDGE Delivered at Dar es Salaam this 24th day of February 2016 H.T.SONGORO JUDGE The Judgment was delivered in the presence of Mr. Fred Sanga, Learned Advocate, who was holding a brief of Mr. G. Mnyelee, Learned Advocate of the Plaintiff and absence of the Defendant and his Counsel.