technics construction group limited vs agape sanctuary ministries international tanzania limited 2022 tzhc 15430 21 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA CIVIL CASE NO. 3 OF 2020 TECHNICS CONSTRUCTION GROUP LIMITED........................... PLAINTIFF VERSUS AGAPE SANCTUARY MINISTRIES INTERNATIONAL TANZANIA LIMITED................................................................. DEFENDANT JUDGEMENT {EX-PARTE) 2/11/2022 & 21/12/2022 MASAJU, J. The Plaintiff, Technics Construction Group Limited, instituted a suit against the Defendant, Agape Sanctuary Ministries International Tanzania Limited, claiming for the following orders: - 1) a declaration that the Defendant has breached two contracts; 2) payment of tsh.316,978,184/= being unpaid sum of the work done as per the contracts; 1 3) payment of interest on item (2) above at the commercial rate of 20% per annum from the date of cause of action to the date of decree; 4) payment of interest on the decretal sum at 12% per annum from date of the decree to the date of full settlement; 5) payment of general damages as assessed by the Court; 6) costs of this suit; and 7) any other reliefs the Court shall deem fit and just to grant. The Defendant neither filed written statement of defence nor entered appearance in Court despite several attempts of service by the Plaintiff including service by way of court process server, service by publication vide Mwanainchi and Nipashe newspapers whose copies were filed in the Court. Hence, the matter proceeded ex-parte against it pursuant to Order VIII Rule 14(1) of the Civil Procedure Code [Cap 33 RE 2019]. In light of the claim, on the 7th day of September, 2022 the Court in consultation with the Plaintiff framed four issues for determination, thus; 1) whether there was a contractual relationship between the parties. 2 2) whether there was breach of that contractual relationship by the Defendant. 3) whether the Plaintiff suffered any damages 4) what reliefs are the parties entitled to At the ex-parte hearing in Court on the 2nd day of November, 2022, Mr. Elisha Jones and Mr. Josephat Magesa Mbeba, the learned counsels represented the Plaintiff. In pursuing its case, the Plaintiff company summoned two witnesses: Dismas Rodrick Manyinda who testified as PW1 and Ikabord Nathaniel Chilambo who testified as PW2. It was testified by PW1, the chief engineer of the Plaintiff, that on the 14th day of December, 2016 the Defendant appointed them as qualified contractor vide a letter to construct a total of two church buildings; one in Bahi District and the other one in Kongwa District. PW1 tendered the said letter of notice of appointment which was admitted in evidence as Exhibit "Pl". In response to Exhibit "Pl", the Plaintiff wrote to the Defendant a letter of acceptance to the appointment offer. And the Defendant wrote other two distinct letters of acceptance to employ the Plaintiff which were collectively admitted in evidence as Exhibit "P2". Afterwards, the Defendant prepared Bill of Quantities (BOQs) and 3 communicated to the Plaintiff. Consequently, both parties signed the BOQs and the contract thereof. PW1 prayed to tender the certified copies of the BOQs and the contract under section 67(l)(a)(i) and 68 of the Evidence Act [Cap 6 RE 2019] which were collectively admitted as Exhibit "P3". PW1 went on testifying that, upon signing of the contract, the Defendant vide a letter requested them to pay for the plot in Kongwa and land rent which they complied. As a result, permits for the project thereof were issued by Kongwa District Council. Then, the Plaintiff submitted to the Defendant receipts for reimbursement of such costs which have remained un-paid to date. PW1 prayed to tender the said letter requesting them to purchase the plot of land in Kongwa District, receipt of payment of purchase of the land together with the land rent receipt which were collectively admitted as Exhibit "P4". PW1 further testified that, thereafter the Plaintiff engaged and paid TAN ROADS to conduct material testing out the project sites whereby their results revealed that the soil for bricks production at the two building construction sites were not fit. PW1 prayed to tender the 4 invoice, receipts in respect of material test and material testing laboratory report for both Kongwa and Bahi District's church buildings construction project that were collectively admitted as Exhibit "P5". . Next, PW1 testified that thereafter the Plaintiff obtained building permit from Kongwa District Council and a sticker from the Contractor's Registration Board (CRB) accompanied by project registration number which were tendered and admitted collectively in evidence as Exhibit "P6" accordingly. PW1 clarified that the Plaintiff did not obtain a building permit in respect of the project in Bahi District. However, the Plaintiff proceeded to mobilise the sites and constructed the church buildings in both Bahi and Kongwa Districts. That the construction reached up to the roofing stage whereby all the costs thereof were borne by the Plaintiff. PWI testified that the interim certificates for payment in respect of the two projects were TZS 149,240,232/= and TZS 167,737,952/= for Bahi and Kongwa respectively, the total thereof being TZS 316,978,184/=. PWI tendered the respective two interim certificates which were admitted in evidence as Exhibit "P7". 5 PW1 proceeded to testify that, afterwards the Defendant informed the Plaintiff vide a letter that payment for the works were being processed. He tendered the said letters regarding plan of payment of the works done as per the raised certificates were which admitted in evidence as Exhibit "P8". That irrespective of the Defendant's promise to pay the Plaintiff, no payment has been made by them while the two projects are still under the Plaintiff's supervision as there are watchmen employed by the Plaintiff to guard the property on the sites. In effect, the Plaintiff's board resolved to sue the Defendant. To verify that assertion, PW1 tendered the said board resolution of the 8th day of July, 2020 which was admitted in evidence as Exhibit "P9". Finally, PW1 closed his testimony by praying that the Court holds that the Defendant has violated the contract thus be condemned to pay the Plaintiffs payment as raised in the two interim certificates, interests thereof and general damages accordingly. PW2 introduced himself as a carpenter with a workshop who previously worked with the Plaintiff company. That the Plaintiff engaged him during construction of two church buildings within Kongwa and Bahi 6 Districts which belongs to the Defendant. He informed the Court that the Plaintiff constructed the foundation, structure to its completion ready for roofing. Further, he stated that as per the information given to him, construction at the two sites has stopped in the mean time because the contractor has not been paid to-date. PW2 added that, he has not been paid to-date too. At last, he prayed the Court to order the Defendant pay the contractor so that they get paid. Ultimately, Mr. Josephat prayed to close the Plaintiffs case and that the Defendant be notified of the date of delivery of the ex-parte judgement. It is trite law that, under Section 110 (1) and (2) of the Evidence Act, [Cap 6, RE 2019] whoever request a Court to give judgment in his favour as to any legal right on the existence of any fact which he asserts, must prove that, the fact exist. It follows therefore that, the burden of proving the claim contained in the plaint is on the Plaintiff and the level of proof is that on the preponderance of probability. 7 On the first issue, as to whether parties entered into a contractual relationship. In his testimony, PW1 stated that the Defendant wrote two distinct letters of acceptance to employ the Plaintiffs to construct two church buildings, one in Bahi District and the other one in Kongwa District as evidenced in Exhibit 'P2\ However, the contract (Exhibit 'P37) in respect to the construction of the church building at Bahi District was not duly executed because it was not signed by the parties. Therefore, the said contract is invalid and unenforceable taking into consideration that the Defendant instructed in its letter of acceptance (Exhibit 'P2Q that the contract to be signed from 1st day of June 2017 at the Agape Church offices in Meserani Arusha. More so, PW1 himself testified that the Plaintiff never obtained building permits in respect to the construction project in Bahi District. From Exhibit 'P3', PW1 is not the contractor therein in respect to the Church building construction project in Bahi District. The contract thereof was not duly signed by the parties. Exhibit 'P4' is specific and limited to the Church building construction project in Kongwa District only. The letter regarding payment plan by the Defendant (Exhibit 'P87) 8 is general and did not acknowledge construction of a particular project. In the circumstances, the Court is of the settled position that there was indeed a contractual relationship between the parties in respect of the Church building construction project in Kongwa District only. The second issue whether there was breach of contract by any party. It was testified by both PW1 and PW2 that the Defendant has never made any payments to the Plaintiff compa ny despite that the Plaintiff incurred preliminary costs and had further construction of the churches to roofing stage. For clarity, the Court finds that the Defendant is in breach of the contract in respect to the construction project of the Church building in Kongwa District. This is because the Defendant has not made any payment to the Plaintiff contrary to item five and four of the contract (Exhibit 'P39 despite that it instructed them to begin construction (Exhibit 'P4') and made assurance to pay (Exhibit 'P8Q. Such facts, indicates that the Defendant was well aware of the Plaintiff claim) but has defaulted to pay as promised. 9 As regards the third issue, that whether the Plaintiff suffered any damages. The Court is not in doubt that indeed the Plaintiff suffered damages in carrying out the construction project in Kongwa District. It was pleaded and testified by PW1 that Defendant vide a letter requested the Plaintiff to pay for the plot in Kongwa and land rent which they complied (as seen in Exhibit 'P4Q. There is, as well, Exhibit 'P5' which shows that the Plaintiff engaged TANROADS, they also engaged the CRB (Exhibit 'P6'), and furthered construction of the church at their own cost as shown in their interim certificates of payment (Exhibit 'P?7). Thus, in sum, the Plaintiff did suffer damages out of the breach as prayed. On the last issue that, what reliefs are the parties entitled to. The Court finds that the party entitled to relief is the Plaintiff since he has a managed to prove its case on the preponderance of probability. Section 73 of the Law Contract Act [Cap 345, RE 2019] instructs that where breach of agreement has been established the same goes with the award of damages. Taking into account that parties were initially bound by their own terms which the Defendant has on its own defaulted to honour them, it is the Court's considered position that based on the 10 available evidence that payment of TZS 10,000,000/= as general damages would bring justice to the Plaintiff, and that the Plaintiff be paid TZS 167,737,952/= by the Defendant being payment for the work done in respect of the Church building construction project in Kongwa District plus cost of this suit. Thus, having regard to all the above, Judgement is hereby entered in favour of the Plaintiff as follows: 1. That, the Defendant shall pay the Plaintiff TZS 167,737,952/= being payment for the work done in respect of Church building construction project in Kongwa District. 2. That, the Defendant shall pay the Plaintiff general damages amounting to TZS 10,000,000/=. 3. The Cost of this suit shall be borne by the Defendant accordingly. GEORGE. M. MASAJU JUDGE 21/12/2022 11