The Board of Trustees of The PSSSF Another vs Estim Construction Company Limited Another CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF DAR ES SALAAM) AT DAR ES SALAAM. CIVIL CASE NO. 196 OF 2022 THE BOARD OF TRUSTEES OF THE PUBLIC SERVICE SOCIAL SECURITY FUND......................……1ST PLAINTIFF ATTORNEY GENERAL…………………............................…………2ND PLAINTIFF VERSUS ESTIM CONSTRUCTION COMPANY LIMITED………………………………………………….1ST DEFENDANT THE INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS (FIDIC)………….………………..2ND DEFENDANT CONSENT JUDGMENT Date of last order: 25/11/2024 Date of Judgment: 25/11/2024 A.A. MBAGWA, J. This judgment stems from a deed of settlement duly signed and filed by the parties in this Court on 22nd day of November 2024. The plaintiffs herein The Board of Trustees of the Public Service Social Security Fund and The Attorney General instituted the present suit against the defendants namely, Estim Construction Company Limited and The International Federation of Consulting Engineers (FIDIC) praying for 1 judgment and decree as follows: - i. A declaration that the Dispute Adjudication Board (DAB) did not have jurisdiction to entertain the subject matter of this suit or any other referral as its constitution contravened Clause 20.2 of the General Conditions of Contract between parties; ii. A declaration that all the proceedings conducted by the DAB from their inception to date are illegal and thus null and void; iii. ESTIM has no genuine claims against the 1st plaintiff; iv. A declaration that the decisions of the DAB and the incidental orders dated the 30th day of November 2017, dated the 10th day of April 2018, 6th of May 2018, and 23rd of August 2018 be set aside; and v. Cost of and incidental to the suit be borne by the defendant. In brief, the material facts as gathered from the plaint and attending Annexures are to the effect that; on 17th December 2015 the defunct Board of Trustees of the PPF Pensions Fund (PPF) now the PSSSF and ESTIM entered into a Construction Contract for the Design, Build, and Maintenance of PSSSF headquarters and commercial property, at the contract sum of TZS 232,389,459,866.68 (VAT Inclusive) “as maximum 2 guaranteed price” for the contract to be administered under the International Federation of Consulting Engineers - FIDIC conditions of Contract for Plant and Design-Build. In the course of the implementation of the contract, ESTIM raised five (5) claims in regard to compensation for currency fluctuation, design error for the Commercial Tower, payment of unfixed materials on site, delay of payment of milestones 35 and 72, and payment of small and long lead items. The said claims were not honoured by the 1st plaintiff. As such, ESTIM commenced adjudication proceedings. The International Federation of Consulting Engineers (FIDIC) appointed The Dispute Adjudication Board (DAB) to preside over the dispute. In its issued decisions dated 30th day of November 2017, 10th day of April 2018, 6th May 2018, and 23rd August 2018, DAB awarded ESTIM the following reliefs;- One, currency fluctuation amounting to 5,613,544,305.99 plus financing charges; Two, interest for late payment of milestone 35 & 72 amounting to TZS 768,413,658.81 plus financing charges; and Three, Costs of DAB. The plaintiffs were not amused by the decisions and orders made by the DAB hence they brought the instant suit claiming reliefs as indicated herein above. 3 In the course of hearing the case, Mr. Mark Mulwambo, learned Principal State Attorney for the plaintiffs informed the Court that the parties had amicably settled the dispute and the deed of settlement had been duly signed and filed in Court. He thus prayed for the court to record the deed of settlement to form part and parcel of the consent judgment and decree of the Court and consequently mark the suit settled. On the other hand, Mr. Emmanuel Daniel Sagan and Elly Mkwawa, learned counsel for the 1st defendant as well as Mr. Nyariga Henry Nyariga, learned counsel for the 2nd defendant joined hands with the plaintiffs’ counsel respectively. It is worth noting that the law is very clear on the disposal of cases by settlement where parties mutually agree to amicably resolve their dispute. Order XXIII rule 3 of the Civil Procedure Code under which this settlement deed was filed provides as follows; "Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise 4 or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit". I have keenly gone through the said deed of settlement filed in this Court on the 22nd day of November 2024 and the provisions of Order XXIII Rule 3 of the Civil Procedure Code. I am satisfied that the same was on 21st November 2024 duly signed by both parties and mutually consented. Additionally, I have scanned the terms and conditions of the settlement deed and found them on all fours with the legal requirements. Disposing of cases through amicable settlement is highly recommended by the court as demonstrated in the cases of Motor Vessel Sepideh and Another vs. Yusuph Mohamed Yusuph and two Others, Civil Application No. 237 of 2013, CAT at Dar es Salaam and Jaffrey Indi. Sian Ltd vs M/s Beijing Construction Engineering Group Limited, Commercial Case No. 38 of 2021, HC Commercial Division. In the premises, the deed of settlement is hereby recorded and adopted to form part and parcel of the consent judgment and decree of this Court. The matter is therefore marked settled with the following orders; 5 1. SETTLEMENT AND WITHDRAWAL OF PROCEEDINGS 1.1 That, PSSSF agrees to pay ESTIM the sum of TZS 11,589,255,461.44 (Tanzanian Shillings Eleven Billion Five Hundred Eighty-Nine Million Two Hundred Fifty-Five Thousand Four Hundred Sixty-One and Forty-Four Cents Only) (exclusive of VAT), being settlement amount as full and final settlement of all claims in relation to the dispute (“Negotiated Settlement Amount”). 1.2 That, upon payment of the Negotiated Settlement Amount herein, ESTIM shall have no further claims against PSSSF in respect to the decisions of the DAB and the incidental orders dated the 30th day of November 2017, dated the 10th day of April 2018, dated 6th May 2018, and dated 23rd August 2018. 1.3 Upon signing of this deed, Civil Case No. 196 of 2022 filed by PSSSF and the Attorney General pending at the High Court of Tanzania, Dar es Salaam Sub - Registry shall be marked settled. 2. PAYMENT TERMS 2.1 That, the payment of the Negotiated Settlement Amount shall 6 be made in three (3) instalments over six (6) months’ period starting in December 2024 to May 2025. 2.2 That, all payments shall be made to the following ESTIM’s bank account: - Account Holder: ESTIM Construction Company Limited. Bank Name: KCB Bank (T) Limited Branch: Samora Branch Dar es Salaam Account Number: 3300136938 Swift Code: KCBLTZTZXXX Branch address: Samora Avenue/Ohio Street P. O. Box 804 Dar es Salaam, Tanzania 2.3 That, no interest is to accrue or to be paid by PSSSF on the Negotiated Settlement Amount. 3. DEFAULTS LIABILITY CLAUSE 3.1 Nothing in this deed shall prevent any party from bringing any claim for any breach of this deed or from otherwise enforcing its rights under this deed or defending a claim made under this deed. 3.2 The parties agree that, in the event that either party is in 7 default of its obligations under this deed, the non-defaulting party shall provide to the defaulting party ten (10) days written notice asking the defaulting party to remedy the default out of which, and provided the defaulting party is diligently attempting to remedy the default, the parties agree to extend the period for fourteen days to allow the defaulting party to remedy the same. 4. COSTS AND EXPENSES 4.1 That, each party (PSSSF, the Government, ESTIM & FIDIC) shall bear its own cost of the Court, Negotiations, and any other costs arising out of and/or in connection with the claims in relation to this Deed. 5. RELEASE AND DISCHARGE OF LIABILITY 5.1 That, the parties acknowledge that the terms in this deed constitute a full and final settlement (including all past, present, and future claims) arising out of the adjudication dispute and each party hereby releases and forever discharges, all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, whether 8 or not presently known to the parties or to the law, and whether in law or equity, that it, ever had, may have or hereafter can, shall or may have against the other party arising out of or connected with: a) the Claim; and b) the Proceedings; 5.2 That, nothing in this deed shall prevent the parties from taking such action as is necessary to enforce the terms of this deed. 6. NON-ADMISSION 6.1 That, the parties hereby acknowledge that this deed constitutes a settlement of disputed claims for the purpose of mitigating the costs and burdens of further litigation and that neither the releases referenced herein nor this deed constitutes an acknowledgment or admission of liability in any way, and PSSSF, ESTIM, and FIDIC expressly deny any liability or wrongdoing in connection with the asserted claims or allegations. 7. AMENDMENT 7.1 That, this deed may not be altered, modified, or amended, 9 nor may any of its provisions be waived, unless by agreement in writing duly executed by authorized representatives of the parties. 8. SEVERABILITY 8.1 That, if any provision of this deed shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this deed which shall remain in full force and effect. 8.2 That, if any provision of this deed is so found to be invalid or unenforceable but would be valid or enforceable if some parts of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable. 9. WARRANTIES 9.1 That, the parties represent and warrant that they have full authority, power, and legal right to incur the obligation, to execute and deliver, and to perform and observe the terms and provisions of this deed and to consummate the 10 transactions contemplated hereby. And that they have taken all necessary actions and all approvals required to have been obtained to authorize the execution, delivery, and performance of this deed and that the consummation of it by the actions contemplated thereon have been duly authorized. 10. NON-ASSIGNMENT 10.1 That, neither this deed nor the rights or obligations hereunder may be assigned, transferred, licensed, sub-licensed, contracted, or sub-contracted directly or indirectly by any of the parties hereto save with the prior written consent of the other parties hereto. 11. DRAFTING OF DEED OF SETTLEMENT 11.1 That, the parties agree that they shall be deemed co-drafters in the event of any interpretation or construction of the terms of this deed and, therefore, that no contra proferentem presumption shall apply. 12. GOVERNING LAW AND JURISDICTION 12.1 That, this deed shall be governed and interpreted in accordance with the laws of Tanzania. 11 NOTICES 12.2 All notices, demands, and other communications under this deed shall be in English, in writing, and may be delivered by email addressed to the intended recipient(s) at its/their email address(es) set out below. Any such notice, demand, or communication, if given in accordance with this clause, shall be deemed to have been duly served immediately. In proving that a notice, demand, or communication has been sent, it suffices to show that the email was properly addressed and dispatched. PSSSF : ESTIM: Director General, ESTIM Construction Company Limited Public Service Social Security Fund (PSSSF), P.O Box PLOT NO. 40. 1501 Mikocheni DODOMA Light Industrial Area, Email:dg@psssf.go.tz P.O. BOX 19716, DARES SALAAM. Email: estim@estimconstruction.co.tz The Solicitor General. International Federation of Consulting Office of the Solicitor General, 10 Kivukoni Road, Engineers (FIDIC) P. O. Box 71554, DARES SALAAM. World Trade Centre II, Email: ag@agctz.go.tz P.O. BOX 311, 1251 GENEVA 15, SWITZERLAND. E-mail fidic@fidic.org. 12 13. EFFECTIVE DATE OF AGREEMENT 13.1 That, this agreement shall take effect immediately and irrevocably upon the signatures of the parties' representatives to this agreement. It is so ordered. Dated at Dar es Salaam this 25th day of November 2024. A.A. Mbagwa JUDGE 25/11/2024 Court: The consent judgment has been delivered in the presence of Mr. Mark Mulwambo (PSA) assisted by Ms. Anna Shayo (PSA) and Mr. Ayubu Sanga (SA), for the plaintiffs, Mr. Emmanuel Daniel Sagan and Mr. Elly Mkwawa, learned advocates for the 1st defendant, and Mr. Kyariga Henry Kyariga, learned advocate for the 2nd defendant. A.A. Mbagwa JUDGE 25/11/2024 13